Motilal Banarasidass Publishers ... vs Standard Chartered Bank
2006 Latest Caselaw 2229 Del

JUDGMENT

Reva Khetrapal, J.

Page 0132

1. By this order I shall dispose of three applications filed by the defendant. The first application being I.A. No. 461/2006 is an application filed by the Page 0133 defendant for entering appearance. The second application being I.A. No. 462/2006 is an application under Order xxxvII Rule 3(7) read with Section 151 of the Code of Civil Procedure for condensation of delay in entering appearance before this Court. The third application being I.A. No. 7884/05 is an application under Section 151 of the Code of Civil Procedure also filed by the defendant, praying that the present suit be treated as an ordinary suit and for permission to file its written statement after giving direction to the plaintiff to supply copies of documents annexed with the plaint.

2. The backdrop in which these applications were filed is as follows.

3. A suit under Order xxxvII of the Code of Civil Procedure, 1908 for recovery of an amount of Rs. 20,53,134/- along with interest thereon and other reliefs was filed by the plaintiff against the defendant. The defendant was served with summons of the said suit on 05.12.2005. An application for entering appearance along with an application for condensation of delay was filed by the defendant on 2.1.2006. The defendant was again served with summons of the suit on 24.01.2006.

4. The defendant avers that though summons of the present suit were served upon it, there was no proper service of summons since copy of the plaint was served without documents and annexures to the plaint. The defendant further avers that on receipt of summons the same were sent to the lawyers of the Bank, namely, M/s. S.N. Gupta and Co. for further action in the matter. In the first week of December, 2005, the office premises of counsel for the defendant-bank was in the process of shifting from A-67, Second Floor, defense Colony, New Delhi to R-26, Ground Floor, NDSE Part II, New Delhi-110 049, and thus all the files and books were being packed for shifting purposes. In the aforesaid process of shifting, the fact that the present suit was filed under the provisions of Order xxxvII of the Code of Civil Procedure could not be noticed and the counsel for the defendant-bank remained under the impression that the suit was an ordinary suit and that the same was listed for written statement on 25.02.2006. On 23.12.2005, however, counsel for the defendant-bank received written instructions by E.mail from the office of the defendant-bank at Parliament Street, New Delhi, attaching the summons of the suit. The said summons were seen and it was revealed that the same were under the provisions of Order xxxvII of the Code of Civil Procedure. Thereupon, the present application for entering appearance Along with an application for condensation of delay was drafted and sought to be filed on 27.12.2005. Since, however, the High Court of Delhi was closed for winter vacation from 21.12.05 to 1.1.06, the applications for entering appearance and condensation of delay could not be filed, and the same were eventually filed on 2.1.2006, on the re-opening of the courts after the winter vacation.

5. The applications are strongly contested by counsel for the plaintiff who in reply asserted that in the event delay in entering appearance is condoned, the plaintiff would be put to grave prejudice. It is alleged by the plaintiff that the applications of the defendant are a bundle of lies, that the defendant has acted in a most callous and negligent manner in prosecuting the present suit and is not entitled to the discretionary relief of condensation of delay in Page 0134 entering appearance. Even assuming without admitting that the office of the counsel for the defendant was in the process of shifting and in consequence thereof, counsel for the defendant was under the impression that it was an ordinary suit, the defendant which is a scheduled bank having law officers and a battery of lawyers must have been fully aware of its duties and obligations under Order xxxvII of the Code of Civil Procedure. Thus, the averments made in the present applications are an after-thought and a mere cover-up for deliberate lapses on the part of the defendant. A substantial indefeasible legal right has accrued to the plaintiff on the defendant not entering appearance in the prescribed manner and, therefore, the plaintiff as of right, is entitled to a decree in the suit in terms of the provisions of Order xxxvII Sub-rule 3 of Rule 2 of the Code of Civil Procedure.

6. Counsel for the plaintiff and the defendant-Bank have been heard at length.

7. In the course of hearing, learned Counsel for the defendant-Bank, inter alia, submitted that the delay in entering appearance was only for 4-5 days as the defendant was served with summons on 5th December, 2005 and the application entering appearance was filed immediately on the re-opening of the High Court after the winter vacation on 2nd January, 2006. During the vacation, he urged, the period of limitation stops running. In the alternative, it was submitted by him that even if it is assumed that the period of limitation does not stop running during the period when the High Court of Delhi was closed, the Registry could not have accepted the application for entering appearance. This was evident from the fact that the application for entering appearance was sought to be filed on 27th December, 2005 Along with the application for condensation of delay, but the same was not accepted by the Registry. It was further submitted that the delay was not deliberate, but was on account of the reasons mentioned in the application, being that when the summons were forwarded to the counsel, he was in the process of shifting his office from defense Colony to South Extension, and that the statement made on affidavit by the counsel to this effect was not specifically denied by the plaintiff. Learned Counsel for the defendant-Bank also urged that the Bank had already instituted recovery proceedings against the plaintiff and in case the delay was not condoned, the right of the Bank to contest the present suit would stand foreclosed.

8. Adverting to the prayer of the defendant for condensation of delay in entering appearance, reliance was placed by learned Counsel for the defendant on a decision of the Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy , wherein relying upon its earlier decisions in Shakuntala Devi Jain v. Kuntal Kumari and State of W.B. v. Administrator, Howrah Municipality , the Supreme Court Page 0135 held that the words 'sufficient cause' in Section 5 of the Limitation Act, 1963 should receive a liberal construction so as to advance substantial justice for 'a court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause.' It was further laid down that 'it must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of dilatory strategy, the Court must show utmost consideration to the suitor.' The following observations made by the Supreme Court are also apposite: (SCC pgs. 127-128, paras 9-11)

9. It is axiomatic that condensation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.

11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Page 0136

9. Reliance was next placed by learned Counsel for the defendant upon a judgment of this Court in HDFC v. Anil Laul 2000 V AD (DELHI) 542. In the said case, the plaintiff had filed a suit for recovery of money under Order xxxvII of the Code of Civil Procedure. Summons in Form IV Appendix B, CPC were served upon the defendants on May 14, 1999. In terms of Order xxxvII CPC, appearance was required to be entered on or before 24th May, 1999. The defendants, however, entered appearance on 19th July, 1999 and filed an application for condensation of delay on the ground that in the summons itself it was mentioned that the suit would be listed again on July 20, 1999 before the Joint Registrar and because of this date appearing on the summons, the defendants were misled and they remained under the impression that they had to enter appearance only on 20th July, 1999. The learned Single Judge of this Court while condoning the delay made the following pertinent observations in paragraph 4 of the Judgment:

4. It is correct that under Order 37 of the Code, on receipt of summons in Form IV Appendix B the defendant is required to enter appearance within 10 days from the date of service of summons upon the defendant. But this Court can also not ignore the fact that when summons are received by a layman who has hardly appeared in Court, he can be misled by the date which is mentioned on the summons. A perusal of the summons shows that the party was informed that the matter will be taken up by the Court on 20th July, 1999. No mala fides have been imputed to the defendant nor any reason has been shown as to why the defendant who wants to contest the suit would not enter appearance in case he was aware that on not filing appearance within 10 days decree will be passed against him. At best it can be a case of casual approach of the defendant to the whole matter. However, it cannot be said that the mistake on the part of the defendant in not entering appearance within 10 days was not bona fide. It can also not be said that by writing the date of 20th July, 1999 on the summons when the defendants were informed that the matter will be listed before the Joint Registrar, the defendant was not misled. In my view, therefore, there is sufficient cause for not entering appearance within time and a good cause has been shown for the delay in entering appearance. I accordingly allow this application subject to payment of Rs. 1,000/- as costs and condone the delay in entering appearance by the defendant.

10. Reference was also made by learned Counsel for the defendant to another decision rendered by a learned Single Judge of this Court in Hector M. Mehta v. CRB Capital Markets Ltd. 2002 V AD (DELHI) 47. In the said case, summons under Order xxxvII CPC were served on the defendant Company through the Official Liquidator on 25th August, 2000, but there was delay of 1 year in entering appearance, which was sought to be got condoned on the ground that the summons and copies of the plaint had got mixed up with the huge and voluminous records of the cases pending against the defendant Company in the office of the Official Liquidator. Not only this, though the defendant eventually entered appearance on 3rd August, 2001, the application for Page 0137 entering appearance Along with the affidavit was filed even later, on 23rd November, 2001. Relying upon the decision of the Supreme Court in the case of N. Balakrishnan (supra), the learned Single Judge held that 'in the absence of anything showing mala fides or deliberate delay as a dilatory tactic, Court should normally condone the delay.' Length of delay, it was further held, was not material. Acceptability of the explanation is the only material criteria. 'There is no presumption that delay in approaching the Court is always deliberate. It should not be overlooked that refusal to condone the delay would result in foreclosing the defendant from putting forth his defense.'

11. Learned Counsel for the plaintiff in support of the contention raised by him that delay was not liable to be condoned relied upon the judgments of the Supreme Court in Mata Din v. A. Narayanan , Union of India v. Popular Construction Co. , Rajni Kumar v. Suresh Kumar Malhotra and Anr. , apart from relying upon a decision of the Rajasthan High Court in Aradhana Textiles Pvt. Ltd. v. Vishnu Textiles Traders and Ors. and the decisions of this Court in Gainda Mull Hem Raj v. Arora Brothers and Anr. , Akhil Chit and Finance (P) Ltd. v. Ramdutt Sharma and Ors. , Vijaya Home Loans Ltd. v. Crown Traders Ltd. and Anr. , U.K. Paints (India) Ltd. v. Surlux Medi Equip Ltd. and Anr. , Shri Rane Parkash and Ors. v. Central Bank of India Industrial Medical Engineers and Ors. v. Anil Nijhawan and Anr. .

12. Having carefully scanned the aforesaid judgments, I am of the view that none of the aforesaid decisions are of any assistance to the plaintiff. In the case of Mata Din (supra), there was a delay in filing the appeal before the Supreme Court, which was condoned by the Supreme Court, holding that the mistake of counsel may in certain cases be taken into account for condensation of delay. The said judgment far from coming to the assistance of the plaintiff supports the defendant's case for condensation of delay.

Page 0138

13. In the case of M/s. Popular Construction Co. (supra), the question posed for determination before the Supreme Court was whether the provisions of Section 5 of the Limitation Act, 1963 were applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. Answering the said question in the negative, the Supreme Court held that the issue had to be resolved with reference to the language used in Sections 29(2) of the Limitation Act, 1963 and Section 34 of the 1996 Act. The said decision has no application to the present case in view of the fact that the same relates to the Arbitration and Conciliation Act, 1996, which as pointed out in para 7 of the judgment itself, is in the genre of 'Special Law'.

14. In the case of Rajni Kumar (supra), the Supreme Court was considering an application for setting aside an ex parte decree passed in a summary suit under Order xxxvII, CPC and, in this context, held that since Rule 4 of Order xxxvII specifically provides for the setting aside of such decree, the provisions of Rule 13 of Order IX will not apply to a suit filed under Order xxxvII. Adverting to the facts of the case before it, the Supreme Court held that though the appellant had shown 'sufficient cause' for his absence on the date of passing of the ex parte decree, he had failed to disclose facts which would have entitled him to defend the case and hence the application of the defendant under Rule 4 of Order 37 was liable to be rejected. The ratio of this decision, clearly, has no application to the present case.

15. The case of M/s. Aradhana Textiles (supra) again is of no assistance to the plaintiff herein. The Rajasthan High Court in the said case was dealing with an application for leave to defend, filed belatedly, with no application for condensation of delay, which was submitted subsequently. Notwithstanding, it was held by the Court that it was not a case of mistake of the defendant, 'but it was a case of ignorance of the law by the counsel for the defendant.' Condoning the delay it was held:

Ignorance of the lawyer may be a sufficient and special ground in some cases for condoning the delay.

16. In the case of M/s. Gainda Mull Hem Raj (supra), this Court (Hon'ble Mr. Justice S.N. Andley) held that it was necessary that the facts mentioned in the application for leave to defend be established upon affidavit and that the reliance placed by the trial court upon an earlier affidavit filed by the defendant in respect of some other application, even though in the same suit, was not proper. It was directed that the trial court reconsider the question as to whether leave should be granted or not after the defendant had filed an affidavit in support of the averments made by him in his application for leave to defend and an opportunity had been afforded to the plaintiff to file counter affidavit thereto. This judgment, in my opinion, has no application to the facts of the present case.

17. In Akhil Chit and Finance (P) Ltd. (supra), a learned Single Judge of this Court (Hon'ble Ms. Sunanda Bhandare, J.) held that on a plain reading of Sub-rule (3) of Rule 2 of Order xxxvII and Sub-rule (6)(a) of Rule 3 of Order xxxvII of the Code of Civil Procedure, it was plain that once the suit was admitted and registered under Order xxxvII and the defendant had failed to appear or seek leave to defend, it was not open to the trial court to direct Page 0139 fresh summons to be issued to the defendant treating the suit as one under the general provisions, and the plaintiff under the aforesaid rules was entitled to judgment forthwith. The aforesaid decision has no application to the facts of the present case as the present case is not a case where the plaintiff has not entered appearance.

18. In M/s. Vijaya Home Loans Ltd. (supra), it was held that as the defendants had failed to enter appearance within ten days of the service of the summons upon them by publication, the allegations made in the plaint shall be deemed to be admitted under Sub-rule (3) of Rule 2 of Order xxxvII CPC, entitling the plaintiff company to a decree for the suit amount. This case again has no application to the facts of the present case, as the defendant has entered appearance in the present case.

19. To the same effect is the decision of this Court in U.K. Paints (India) Ltd. (supra), wherein it was held that a summary suit under Order xxxvII CPC has to be decreed if the defendant does not enter appearance within ten days of service upon him.

20. The ratio of the case of Shri Rane Parkash (supra) is also of no assistance to the plaintiff. In the said case, summons for judgment were duly served on the two addresses given by the defendant. The application for leave to defend was not filed within the statutory period of ten days, but was filed after nine months. Dismissing the application, the Court held that on facts 'the delay in filing of the leave to defend application was deliberate and a result of callousness and utmost negligence on the part of the defendant's officers which they wanted to cover up by filing this application'.

21. In the case of M/s. Industrial Medical Engineers (supra), a decree was passed against the defendants who failed to enter appearance by the trial court which was sought to be challenged in the High Court. A learned Single Judge of the High Court dismissing the revision petition held that no cogent reason had been disclosed to doubt that the signature on the AD card was of a person having control on the management of the partnership business. It was observed that the Postman is an independent agency whose report should ordinarily be accepted. In the instant case, this question does not arise for consideration at all, in as much as the defendant does not dispute that it was served on 5th December, 2005 and again on 24th January, 2006.

22. Adverting next to the plea of the defendant that the application for entering appearance was filed by the defendant 'by way of abundant caution' and that service of summons was not proper, reliance was placed by learned Counsel for the defendant upon two decisions of this Court in Hans Raj v. Lakhi Ram and New Bank of India v. Master Steel Marketing Co. 1995 III AD (DELHI) 957.

23. In the case of New Bank of India (supra), relying upon its earlier decision in Punjab and Sind Bank v. Ramji Das Khanna , this Page 0140 Court held that service on the defendants was not complete by mere publication. Defendants could not have in the absence of plaint and documents, applied for leave to defend and for that reason alone, the judgment and decree of the trial court was liable to be set aside under the provisions of Order xxxvII Rule 4 and unconditional leave granted to the defendants to contest the suit.

24. In the case of Hans Raj (supra) also, the ex parte decree was set aside under Order xxxvII Rule 4, CPC on the ground that non-service of summons under the provisions of Order xxxvII would by itself be a special circumstance within the meaning of Rule 4 of Order xxxvII, entitling the defendant to ask for setting aside the decree. A learned Single Judge of this Court in paragraph 6 of the judgment held as follows:

6. ...In a suit brought under Order 37, CPC, it is all the more important for the plaintiff to show that the fact that the suit was filed under summary procedure was specifically brought to the notice of the defendant because in these cases he has to put an appearance within a period of ten days. There is nothing on record to show that either the summons were tendered to the wife of the petitioner or she was told that defendant has to appear before Court within a period of ten days. A perusal of the order sheets reveal that on several dates either the 'Process fee was not filed by the plaintiff or annexures were not furnished as a result of which summons could not be issued. As regards substituted service it is clear from the perusal of copy of the newspaper 'Statesman' dated 21-10-1995 that copy of the annexures namely the alleged loan agreement dated 24-3-1994 were not published in the newspaper. While dealing with the service of summons in the suit under Order 37, CPC, this Court in the case of Punjab and Sind Bank v. Ramji Das Khanna took the view that where a process server has affixed only the copy of summons without affixing the copy of plaint and annexures thereto and the Registrar of the Court has not held any enquiry to determine whether service under the circumstances was sufficient, the service of summons is insufficient and it is a sufficient circumstance to set aside a decree. The Court took note of relevant rules of the CPC and the High Court rules in this regard. Order 37, CPC specifically provides that in a suit under Order 37, CPC, the plaintiff shall together with the summons under Rule 2, serve the defendant with a copy of the plaint and annexures thereto. Thus where only summon have been affixed without affixing copy of the plaint and annexures thereto, the service is not in accordance with the provisions of Order 37, Rule 3(1) CPC and this would be a sufficient ground to set aside the decree. The same view is taken by another bench of this Court in the case of New Bank of India v. Master Steel Marketing Co. 1995 (3) AD (Delhi) 957. It was a case of the substituted service. (sic.). It was held that where only copy of summons was published without publishing copy of the plaint and annexures thereto, the service was not in accordance with law....

Page 0141

25. A bare glance at IA No. 461/2006 shows that in paragraph 1 of the plaint itself, it has been stated that the defendant-Bank was served with the summons of the present suit in the evening of 5th December, 2005 at its Karol Bagh branch, but has not been served with a complete paper book. It is further stated that 'however, keeping in view the technicalities and as an abundant caution, the defendant bank is entering appearance in the said suit'. Much emphasis has been laid by the plaintiff on the fact that the defendant was served in the morning and not in the evening of 5th December, 2005, though nothing much to my mind turns upon the same. The fact remains that the defendant was not served with the complete paper book and in IA No. 461/2006 it was twice reiterated by the defendant-Bank that only copy of the plaint and summons were served and that documents and annexures to the suit had not been served and, therefore, service under Order xxxvII was not proper.

26. The plaintiff in its reply to the aforesaid applications has admitted that the summons were served to the defendant on 5th December, 2005, but has nowhere stated that documents and annexures were served Along with the plaint nor it has disputed the fact that the office of the counsel was in the process of shifting. The summons were served on the defendant on 5th December, 2005. The defendant should have entered appearance by 15th December, 2005. The Court closed down for the winter vacation on 21st December, 2005 and reopened on 1st January, 2006. The application entering appearance was filed on 2nd January, 2006. Thus, the delay at the most was for a period of five days, that is, from 16th December, 2005 to 21st December, 2005. Further, the defendant was again served with summons on 24th January, 2006 obviously on the assumption that the summons had not been properly served on the defendant which, in fact, they were not, as copies of documents and annexures had not been furnished to the defendant.

27. In the aforesaid circumstances, to my mind, sufficient cause has been made out by the defendant-Bank for condensation of delay in entering appearance. In the circumstances, delay is condoned subject, however, to the payment of Rs. 2,000/- as costs, which shall be tendered by the defendant to the Delhi Legal Services Authority. IA Nos. 461/2006 and 462/2006 stand disposed of accordingly. IA No. 7884/2006

28. Adverting next to the defendant's prayer for treating the present suit as an ordinary suit, the following grounds were sought to be urged in interim application bearing No. 7884/2006:

(i) Service of the summons was not proper and, therefore, the suit was liable to be treated as an ordinary suit.

(ii) By order dated 9th November, 2005 in IA No. 8147/2005, legible copies were directed to be filed within four weeks by the plaintiff. The said order has not been complied with by the plaintiff till date. Legible copies have not been filed by the plaintiff or supplied to the defendant.

(iii) Prior to the registration of the suit, the plaintiff had been taking various adjournments. Ultimately, vide order dated 9th November, 2005, Page 0142 the Court directed the plaint to be registered, but there was no order passed for the registration of the suit under the provisions of Order xxxvII nor any direction was given that the summons be issued in the prescribed form. The presumption, therefore, arises that it was the mistake of the Registry when they sent the summons indicating the same to be under Order xxxvII, whereas, in fact, the Court never issued summons under the provisions of Order xxxvII.

(iv) The provisions of Order xxxvII are mandatory in nature and any departure from the said provisions will render non-maintainable the suit under Order xxxvII. It is not open to the plaintiff to file an ordinary suit in the garb of a suit under Order xxxvII.

29. In the above context, reliance was placed by learned Counsel for the defendant on a decision of the Madhya Pradesh High Court in Gwalior Distributing Co. Lashkar and Anr. v. MRs. Kanta Gupta and of this Court in Khera Handloom Supply v. O.B. Exports and Ors. 1989 (2) Delhi Lawyer 82 (DB). The said reliance, in my view, is entirely misplaced. In Gwalior Distributing Co. (supra), all that was held by the Madhya Pradesh High Court was that the plaintiff cannot ask for a suit not falling under Order xxxvII to be tried as a summary suit. I do not think that there can be any dispute with this proposition of law. Indubitably, it is so. But it was so stated with reference to the provisions of Sub-rule (2) of Rule 1 of Order xxxvII and it is difficult to conjecture how the said finding is of any relevance in the present case. The defendant merely alleges that the Court did not issue summons under Order xxxvII and hence the suit must be treated as an ordinary suit. There is a subtle but marked distinction between the two.

30. In the case of M/s. Khera Handloom Supply (supra), reliance was placed by counsel for the defendant upon the following observations made by a Division Bench of this Court (Hon'ble Mr. Justice B.N. Kirpal and Hon'ble Mr. Justice Y.K. Sabharwal as their Lordships then were):

11. ...The consequence of non-observance of Order 37 Rule 2 would, in our mind, be that the suit will have to be regarded as an ordinary civil suit and not one which is filed under Order 37. Non-observance or non-compliance with the provisions of Order 37 Rule 2 would not result in the suit being dismissed but must result in the Court regarding the suit as having been filed not under the said provisions of Order 37 but as an ordinary suit. To this extent, therefore, the contention of the learned Counsel for the defendants is correct, namely, that Order 37 Rule 2 is a mandatory provision which has to be complied with.

31. I am respectfully bound by the above law laid by the Division Bench, but it cannot be read shorn of the context in which it was made. A bare glance at paragraph 15 of the judgment shows that the Division Bench observed further that the provisions of Order xxxvII Rule 2 being procedural in nature, the requirement of the said provisions would be satisfied if there has been substantial compliance of the same. It is beyond the pale of controversy that Page 0143 in the present case there has been substantial compliance with the provisions of Order xxxvII. The mere fact that the summons were not properly served upon the defendant cannot lead to the conclusion that the suit filed by the plaintiff under Order xxxvII must be treated as an ordinary suit. Likewise, the fact that there was an omission by this Court to register the suit as one under Order xxxvII can by no stretch of imagination confer an advantage upon the defendant and operate to the prejudice of the plaintiff. The defendant itself was not misled by the same, in as much as the defendant treated the suit as a suit under Order xxxvII and entered its appearance, albeit belatedly. It cannot now be heard to say that the suit be treated as an ordinary suit. The application of the defendant praying for the aforesaid relief is, therefore, liable to be rejected.

32. IA No. 7884/2006 is accordingly dismissed.

33. Plaintiff shall be at liberty to move an application for service of summons for judgment upon the defendant in accordance with law. It is , however, deemed expedient to record that no observations made in the present order shall be taken into account or construed as an expression of opinion at the time of consideration of the application for leave to defend when such application is filed by the defendant in response to the summons for judgment, and that such application when filed shall be considered entirely on its own merits.

CS(OS) No. 1429/2005

List the case on 8.1.2007 for further proceedings.