Lal Chand Shyam vs Sushil Mohan Bhardwaj And Anr.
2010 Latest Caselaw 2323 Del

                                                     UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         FAO No. 396/2009

                                    Date of Decision: April 30, 2010


       LAL CHAND SHYAM ............................. Appellant
                    through Mr.Manish Makhija, Advocate

                        versus


       SUSHIL MOHAN BHARDWAJ AND ANR. ..... Respondents
                    through Mr. Arvind Dhingra, Advocate

       CORAM:.
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This appeal has been preferred against the order of Additional

District Judge Shri Kamlesh Kumar whereby the application of the

appellant under Order 9 Rule 13 of the Code of Civil Procedure

praying for setting aside of the ex-parte decree dated July 26, 2008

has been dismissed.

It is submitted by learned counsel for the appellant that the

appellant is a resident of Shimla and that he had not received

summons of the suit. On the other hand, it is submitted by learned

counsel for the respondents that not only did the appellant not appear

before the Additional District Judge, but he has also not been

FAO No.396/2009 Page 1 appearing in criminal proceedings initiated against him under Section

138 of the Negotiable Instrument Act.

Having regard to the fact that the decree passed against the

appellant is to the tune of Rs. 10,76,000/- along with interest @ 24%

per annum which is a huge amount, this court is of the view that the

appellant should be given an opportunity to contest the suit on merits.

Accordingly, the appeal is allowed, subject to the appellant depositing

Rs. 5 lacs towards the decretal amount with the trial court within four

weeks from now and subject to the appellant appearing before the

concerned court of the Metropolitan Magistrate where proceedings

under Section 138 of the Code of Civil Procedure are pending against

him. The learned counsel for the respondent shall furnish to the

counsel for the appellant the particulars of the court where the cases

under Section 138 are pending and also the dates on which they are

listed. Both the parties are directed to appear before the trial court on

May 10, 2010.

The impugned order is set aside, subject to the appellant paying

cost of Rs.50,000/- to the respondents within four weeks from now.

The appeal is allowed, subject to the above conditions.

REKHA SHARMA, J.

APRIL 30, 2010
PC




FAO No.396/2009                                                     Page 1