Rajni vs Rajinder Singh And Anr.
2006 Latest Caselaw 842 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiff had filed a suit for recovery of Rs. 3,85,746.25 against the defendants under the provisions of Order 37 of the CPC. During the pendency of this suit, an application for leave to defend was filed on behalf of the defendants. The application was contested by the plaintiff. However, during the pendency of the application defendant No. 1 did not appear resulting in passing a decree against defendant No. 1. Thereafter, defendant No. 2 filed an application under Order 37 Rule 4 read with Section 151 of the CPC for setting aside the decree dated 8.2.2005. This application was also dismissed by the learned Trial Court vide its order dated 11.8.2005. The suit against defendant No. 1 is still pending before the Trial Court.

2. Aggrieved from the said two orders i.e. 8.2.2005 and 11.8.2005, the appellant has filed the present appeal which itself is barred by time and the application for condensation of delay has been filed.

3. During the course of hearing learned Counsel appearing for the parties upon instructions from their respective clients who are present in the Court stated that this appeal without prejudice to the rights and contentions of the parties could be disposed of by a consent order. The terms are that the judgment and decree passed by the learned Trial Court dated 8.2.2005 be set aside and the appellant in the present appeal (defendant No. 2 in the suit) may be permitted to contest the suit on merits.

4. In view of the agreement between the parties the application of the appellant under Order 37 Rule 4 read with Section 151 of the CPC as well as the application filed by the defendant for leave to defend is allowed. The defendant is granted leave to defend the subject to the conditions stated hereinbelow:

1. The FDR brought by the appellant in the Court today i.e. Spectrum Fixed Deposit Receipt drawn on Punjab National Bank, Ashok Vihar, Delhi-110052, for a sum of Rs. 2,50,000/- (Two lakh fifty thousand only) SXO No. 211035 in favor of Ms. Rajni Sabharwal R/o 104, Magnum House-II, Karampura, New Delhi (matured on 4.5.2007), which is in the name of appellant shall be kept by the Registry of this Court and will be sent to the learned Trial Court along with the records on the next date of hearing i.e. 10.7.2006, pending in the Court of Mr. K.C. Mohi, ADJ, Delhi (Suit No. 425/2004).

2. The FDR shall be retained by the Court and the amount under this FDR should be disbursed by the Bank only as per the terms in the decree and the directions which may be passed by the learned Trial Court in its final judgment.

3. The appellant before the Court shall file a written statement by 10.7.2006 and will not be granted any further adjournments for that purpose.

5. In view of the fact that the decree has been set aside the execution obviously is inconsequential. In view of the above terms which are otherwise fair and equitable, the appeal is dispsoed of on the agreed terms and the FDR shall be transmitted by the Registry of this Court to the Court aforementioned. It is expected that the learned Trial Court would conclude the trial as expeditiously as possible, and in any case within one year from the date by 31.3.2007.

6. The appeal is, accordingly, disposed of leaving the parties to bear their own costs.

7. The judgment and decree of the Trial Court dated 8.2.2005 are set aside, subject to the conditions aforerecorded.

Passing of this order would in no way affect the proceedings between the plaintiff and defendant No. 1 before the learned Trial Court.