Shri Anil Sharma vs Wiezmani Consultants And Anr.
2004 Latest Caselaw 1177 Del

JUDGMENT

Mukul Mudgal , J.

IA 4204/04 (under Section 5 of the Limitation Act for condensation of delay)

Allowed subject to all just exceptions. Delay in moving the application, IA.No. 4203/2004 for setting aside the Order dated 9th July, 2003 and for restoration of the IA.No. 11345/2001 and for setting aside the decree passed on 29th August, 2003 in the main Suit No. 2675/2000 stands condoned. IA.No. 4203/2004

1. This is an application by the defendants under Order IX Rule 9 of the Civil Procedure Code, 1908 (in short the `CPC') to set aside the ex-parte judgment dated 29th August, 2003 decreeing the suit of the plaintiff against the defendants under Order xxxvI as the leave to defend application filed by the defendant went unrepresented as his counsel did not attend Court and was accordingly dismissed on 9th July, 2003. As a notice under Order XXI Rule 54 CPC for execution of the decree was found pasted on 19th May, 2004, the defendant/applicant came to know about the ex-parte decree passed against it and moved the present application on 20th July, 2004 .

2. The crux of the applicants averments is that he was diligently defending the suit and filed the application for leave to defend but his counsel did not communicate the Court notice to him nor appeared in Court without informing the defendant.

3. On 7th December, 2001 notice on the leave to defend application filed by the defendants was issued to the plaintiff.

4.Thereafter on 4th April, 2002 defendants were directed by this Court to place on record a complete copy of the account of the plaintiff and in particular the details of the sum of Rs. 11,23,464/- said to be debited to the plaintiffs' account. This order dated 4th April, 2002 was not complied with in spite of further time granted on 2nd May, 2002; 4th September , 2002; 4th October, 2002. Eventually an affidavit was filed by the defendant on 12th November, 2002 on behalf of the defendant by Devraj and Co., Advocates. However, no accounts as directed by this Court on 4th April, 2002 were filed. Thereafter as counsel did not appear for the defendant on 28th March, 2003, this Court issued Court notice to the defendants though which was found served by the Order dated 23rd May, 2003. The Court did not decree the suit but listed the case on 9th July, 2003 on which date due to non-appearance of counsel for defendants, application for leave to defend was dismissed and the case again listed on 11th July, 2003 when the case was listed for arguments on 25th August, 2003 when after hearing arguments the case was listed for orders on 29th August, 2003 when by a reasoned judgment the suit of the plaintiff was decreed.

5. The judgment against the defendants dated 29th August, 2003 is a reasoned one and records that the defendants acknowledged his liability in writing on 11th April, 1997. Thereafter some cheques were issued towards liability issued by the defendants we rehonoured and some were encashed. Thus judgment leading to the decree is based upon an acknowledgment of the defendant and cannot be faulted. Significantly two notices quantifying the amount due and payable were sent and served on the defendant on 30th January, 1999 and 12th May, 1999 but there was no compliance or reply to these notices. Thus on merits also the defendants do not have any worthwhile defense. The defendant was asked in any event to deposit in Court the principal sum of about Rs. 7 lacs to show his bona fides but he declined to do so. Accordingly, no indulgence could be shown to the defendant/applicant.

6. Apart from merits, this application under Order IX Rule 9 CPC is also vague in particulars and appears to be a measure to gain time. No reasons are given why the defendant did not contact his erstwhile and first counsel.

7. Furthermore no diligence is averred or proved in pursuing the case. In my view, even the matter was ripe for hearing as far back as on 28th March, 2003 and really speaking there was no need to issue court notice to the defendants but the Court was indulgent and issued the court notice by way of an abundant precaution though it does not give any right to defendant to lay a claim for being absent from the court proceedings. The defendant has not shown how he was diligent in pursuing this matter and were reference to the counsel cannot absolve it of the blame. It has only been stated that the defendant has been contacting the counsel as and when required by the counsel. It is also stated that the defendant was contesting the case diligently and no further delay has been occasioned. These are not in my view averments which would suffice to permit the relief under Order IX Rule 9 CPC to be granted. Consequently the prayer made in the application cannot be granted as no specific instances have been given.

8. Accordingly, there is no merit in this application which is dismissed.

IA.No. 4205/04(stay of the execution of the decree passed in Suit No. 2675/2000) and IA.No. 5113/04 (under Section 151 CPC for hearing of IA.No. 4203/04) In view of the dismissal of the IA.No. 4203/04, these applications have become infructuous and the same are accordingly dismissed as having become infructuous. Next date of 10th January, 2005 fixed in IA.No. 5113/04 stands cancelled.