Binod Engineering & Mechanical ... vs Union Of India
2009 Latest Caselaw 2487 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Date of Reserve: July 02, 2009
                                                  Date of Order: July 06, 2009

+ IA Nos.9995 & 9996 of 2008 in CS(OS) 815A/1998

%                                                               06.07.2009
       Binod Engineering & Mechanical Works              ...Plaintiff
       Through: Mr. Chetan Sharma, Sr. Adv. with Mr. D. Moitra, Advocates

       Versus

       Union of India                                            ...Defendant
       Through: Mr. J.M. Kalra, Advocate


       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       ORDER

IA No.9995 & 9996 of 2008

1. This application under Section 5 of the Limitation Act, 1963 read with

Section 151 of the Code of Civil Procedure, 1908 has been made by the

applicant/Judgment Debtor for condonation of delay in moving the application

being IA No.9996 of 2008 under Order 9 Rule 13 of CPC for setting aside the

ex parte decree/judgment dated 15th March 2004.

2. The arbitration award dated 25th March 1998 was filed in the Court by

the Arbitrator and notice of the award was sent to the applicant. The

applicant filed objections against the award under Section 30 of the

Arbitration Act, 1940. However, the objections were dismissed by this Court

for non prosecution as well as in default on 15th March 2004 and the award

CS(OS) 815A/1998 Binod Eng. & Mechanical Works v. UOI Page 1 Of 6 was made a rule of the Court on 15th March 2004 and the decree sheet was

ordered to be prepared. The applicant made an application under Order 9

Rule 13 CPC on 14.08.2008 for setting aside order dated 15 th March 2004 and

also made an application for condonation of delay of 1550 days.

3. The applicant has made this application under Section 5 of Limitation

Act stating therein that the applicant firm became non-functional sometime in

the year 1998 due to differences and disputes between the partners,

although all the partners were closely related as family members. The

partners made allegations of mismanagement and misappropriation of funds

against each other with the result that the operation of the firm became static

and the firm had to be closed down from 1998 onwards. The office of the firm

virtually closed down as there was no officer to take decision on legal/

business matters. There was no person to take care of the important notices

and the papers served on the applicant. This suit was also one of such

documents which remained unattended due to lack of proper instructions

being given by the office of the applicant and hence no steps were taken in

these proceedings by the advocate representing the applicant. The advocate

for the applicant appeared in the Court up to 21st January 2004, as revealed

from the record. There was failure of appearance thereafter which resulted

into passing of the impugned judgment and decree dated 15th March 2004.

4. It is submitted by the applicant that Mr. Satish Kumar Jhunjhunwala,

one of the partners of firm, had became physically unwell and was being

affected by recurring ailments, so he could not attend the office of the firm

nor he could participate in the business. He was, therefore, compelled to keep

himself away from the affairs of the firm and it became difficult for him to

CS(OS) 815A/1998 Binod Eng. & Mechanical Works v. UOI Page 2 Of 6 take any initiative and to participate in the business of the applicant upto end

of 2006. The heath condition of Mr. Satish Kumar Jhunjhuwala improved and

he slowly started participating in the business of the applicant. There was

negligence on his part but it was due to physical infirmities and the award

became decree of the court. Mr. Satish Kumar Jhunjhunwala came to know of

the execution proceeding from Execution Case No.119 of 2008 which was

transferred to High Court of Calcutta under the orders of this Court in the end

of July/1st week of August 2008 and a copy of execution proceedings was

served upon him. On inquiries he came to know about the case and then

instructed the counsel to make this application. It is submitted by applicant

that the applicant had a good case on merits to get the decree dated 15 th

March 2004 set aside and it was due to closure and non operation of the firm

and physical inability of Mr. Satish Kumar Jhunjhunwala to give instructions

that an ex parte decree was passed in absence of the applicant. It is also

submitted that the law firm engaged by the applicant did not inform the

applicant about the decree having been passed and the applicant being in

Kolkata could not pursue the case properly due to communication gap. It is

prayed that the reason for making the application under Order 9 Rule 13 with

a delay of 1550 days have been sufficiently explained by the applicant and,

therefore, the delay in filing the application under Order 9 Rule 13 should be

condoned.

5. In reply, the non-applicant/decree holder stated that the application

does not disclose a cause for condonation of delay. The applicant did not

even disclose a particular date when the applicant came to know about the

dismissal of objections. The plea taken by the applicant that he came to know

about the order only at the end of July/1st week of August, when a copy of

CS(OS) 815A/1998 Binod Eng. & Mechanical Works v. UOI Page 3 Of 6 execution petition was served on him is contrary to record. The respondent

/decree holder had written letter dated 3rd June 2006 to the applicant and

sent it by registered post informing about the order of the Court and the

amount to be recovered from the applicant. A notice of execution petition

No.231/2006 was served upon the applicant and the counsel for applicant put

appearance on 12th January 2007, 6th February 2007 and on 17th April 2007,

when this Court transferred the execution proceedings to Calcutta Court

under Section 139 of CPC. Thus, the plea that the applicant came to know of

the order in July/ August 2008 was contrary to record and a false plea. The

non applicant /decree holder also denied the other averments made by the

applicant regarding the firm having become non-functional from 1998

onwards due to differences and disputes between the partners. It is

submitted that the notice /summons from the Calcutta High Court and from

this Court were served upon the applicant only at the office address of the

applicant and the applicant put appearance in this Court as well as in Calcutta

High Court showing that the firm was very much functional and was taking

care of all its affairs. The plea about the physical unwellness of Mr. Satish

Kumar Jhunjhunwala was also denied. The applicant had filed medical record

of Mr. Satish Kumar Jhunjhunwala along with this application and the counsel

for the decree holder took this Court through the medical record showing that

Mr. Satish Kumar Jhunjhunwala was not suffering from any serious disease or

ailment so as to be incapable of working. The counsel for the non application

also drew attention to the fact that Mr. Satish Kumar Jhunjhunwala was a

member of board of directors of M/s Victory Iron Works Limited. A copy of the

notice of annual general meeting of this company and directors' report and

other documents were placed on record showing that Mr. Satish Kumar

Jhunjhunwala was very much active in the company.

CS(OS) 815A/1998 Binod Eng. & Mechanical Works v. UOI Page 4 Of 6

6. A perusal of objections under Section 30 of the Arbitration Act, 1940

filed by the applicant would show that the objections were accompanied by

an affidavit of Mr. Akhilesh Kumar Jha, the manager of the applicant's firm.

The affidavit was filed on 10th May 1999. In case the firm had been non

functional from 1998 onwards as is contended and no officer of the firm was

taking care of the affairs of the firm, these objections and affidavit

accompanying objections would not have been in the Court. The very fact

that the objections were filed in the Court on 10th May 1999 accompanied by

the affidavit of one of the officers of the firm belies the entire stand taken by

the applicant in the application for condonation of delay and shows that the

plea taken by the applicant was absolutely a false plea. It is not the case of

the applicant that the applicant firm got dissolved on account of disputes

inter se partners, or the disputes of the firm were taken to any court for

settlement or any arbitrator was appointed. No record of the firm has been

placed on record showing that the firm had stopped transacting business

after 1998. The reasons given by the applicant in the application for

condonation of delay are thus false on the face of it.

7. The medical record of Mr. Satish Kumar Jhunjhunwala also shows that

he was very much hale and hearty. The fact that he was working as director

in another company has not been denied. This also shows that the plea of ill

health was a false plea. Even otherwise, according to applicant, the firm had

following partners:

1. Shri Sant Kumar Jhjhunwala

2. Shri Satish Kumar Jhunjhunwala

3. Shri Sajjan Kumar Jhjhunwala

CS(OS) 815A/1998 Binod Eng. & Mechanical Works v. UOI Page 5 Of 6

4. Shri Saroj Kumar Jhjhunwala

5. Shri Ashish Kumar Jhjhunwala

6. Smt. Usha Devi Jhjhunwala

Even if one partner was unwell, the other partners could have acted for the

firm. It is not the case of the applicant that Mr. Satish Kumar Jhjhunwala was

the only working partner and all other partners were sleeping partners. No

partnership deed has been placed on record.

8. In view of the foregoing facts, I find no merits in the application under

Section 5 of the Limitation Act for condonation of delay of 1550 days. The

application is hereby dismissed. Accordingly, the application under Order 9

Rule 13 CPC also stands dismissed.

July 06, 2009                                     SHIV NARAYAN DHINGRA J.
rd




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