Delhi High Court
M/S National Small Industries ... vs Shrishti Auto Engg. (P) Ltd. & Ors. on 8 September, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 13th August, 2010
Date of Order: 8th September, 2010
+ R.A. No. 5/2010 & R.P. No. 70/2010 in C.S. (OS) No. 267/2006
% 08.09.2010
M/S. NATIONAL SMALL INDUSTRIES CORP. LTD. ..... Plaintiff
Through: Mr Mohinder Thakur, Adv.
versus
SHRISHTI AUTO ENGG. (P) LTD. & ORS. ..... Respondents
Through: None.
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
R.A. No. 5/2010 in C.S. (OS) No. 267/2006
No ground to entertain this application. Same is dismissed.
R.P. No. 70/2010 in C.S. (OS) No. 267/2006
1. This application for review has been filed by the plaintiff seeking review of
order dated 14th December, 2009, whereby this Court had granted leave to defend to
defendants No. 2 and 3 in a suit under Order 37 Rule 1 of CPC. It is submitted by
the plaintiff/review petitioner that this court in its order dated 26th April, 2007, had
observed that the defendant No. 4 was very well aware of the pendency of the suit,
but, had not filed memo of appearance within 10 days as per requirement of Order 37
Rule 2 & 3 CPC and the order with regard to this fact would be passed on next date
of hearing. However, the necessary order regarding effect of not putting appearance
by defendant No. 4 within 10 days was not passed and the order dated 26th April,
2007, skipped the notice of this Court at the time of considering the application for
leave to defend. The other submission is that defendant No. 3, who was Director of
defendant No. 1, company, was served in December, 2007, and he had also not put
his appearance. An order of this Court dated 8th April, 2008, noticed that defendant
No. 3 had been served and had not put appearance. The order-sheets after 8th April,
2008 and thereafter clearly show that only defendant No. 1, 2 and 4 were appearing
and represented by the counsel and there was no appearance/representation on
behalf of defendant No 3. However, this Court on the basis of observations made in
application for leave to defend of defendants No. 1 & 2, considered as if leave to
defend was filed on behalf of defendant No. 3 also and vide order dated 14th
December, 2009, allowed the leave to defend application on behalf of defendant No.
3. It is stated that order passed in respect of defendant no. 3 and 4 granting leave to
defend was therefore, contrary to record and there was an error apparent on the face
of order dated 14th December, 2009.
2. I have perused the order dated 26th April, 2007 passed by this Court where
from it is clear that defendant no. 4 had filed an affidavit supporting the application
made by defendant No. 1 & 2 but he had not put in his appearance in the case and
had not filed memo of appearance within 10 days. A decree in terms of the suit was
to be passed out rightly against defendant No. 4. However, the order was deferred
as the Court considered it would be appropriate to pass order in respect of all the
defendants at one go. Similarly, the order dated 8th April, 2008, shows that
defendant No. 3 was served in December, 2007, still, no appearance was put by
defendant no. 3. A perusal of orders passed after dated 8th April, 2008, would show
that defendant no. 3 did not appear in the court even thereafter nor he was
represented in the court through any counsel. It is obvious that defendant No. 3 had
not contested the suit under Order 37 CPC and plaintiff was entitled for a decree as
against defendant No. 3 as well.
3. Thus, apparently, these two orders skipped the notice of this Court while
disposing of application for leave to defend made by defendant no. 1,2 and 4. The
application for leave to defend filed by defendant no. 4 could not have been
considered since he had not put appearance within prescribed period of 10 days and
the plaintiff became entitled for judgment. Similarly, the defendant no. 3, who had
not contested the suit and had not put appearance within prescribed period, was also
to suffer a decree and was not entitled to leave to defend. There being errors
apparent on the face of the record, the order dated 14th December, 2009, passed by
this Court, needs modification for correcting these errors. Para no. 13 of the order
dated 14th December, 2009, is modified to read as under:
"13. I, therefore, find that no triable issues have been
raised by defendant No.1 in this case. The only effort of
the defendants from the very beginning had been to see
that the proceedings in this case are delayed on one or the
other ground. As far as defendant Nos. 2, 3 and 4 are
concerned, defendant no. 3 and 4 are not entitled to leave
to defend since they did not put appearance within the
prescribed period of 10 days and defendant no. 3 did not
contest the suit at all. So far as defendant no. 2 is
concerned, defendant no. 2,a director of the Company,
had executed an indemnity bond in favour of the plaintiff to
the following extent:
"In consideration of your having
placed/agreed to place orders for
machines for giving them to our
company on H.P. Basis, we
hereby jointly and severally agree
to indemnify the National Small
Industries Corporation, Gurgaon-
Haryana against all losses,
expenses which may be suffered
and incurred by the Corporation in
relation thereto, to the extent of `
122.44 lacs."
4. Para no. 14 shall read as under:
"14. In view of defendant no. 2 indemnifying the plaintiff
for the losses that may be suffered by the plaintiff in
respect of hire purchase agreements, I consider that
defendant No. 2 is entitled for leave to defend in view of
the judgment of Supreme Court in the case of State Bank
of Saurashtra Vs. M/s. Ashit Shipping Services Private
Limited & Another reported in 2002 (4) SCC 736. I,
therefore, dismiss the application made by defendant No.1
& 4 under Order 37 Rule 3 (5) CPC for leave to defend and
defendant Nos.2's prayer for leave to defend is allowed."
5. Para no. 15 shall read as under:
"In view of the fact that application for leave to defend of
defendant No. 1 & 4 has been dismissed and defendant
no. 3 has not contested the suit, the suit of the plaintiff is
decreed as against defendant No. 1,3 & 4 for a sum of `
1,45,08,077.00 along with costs and pendent elite and
future interest @ 8% per annum, jointly and severally.
Decree-Sheet be prepared against defendants No. 1,3 and
List before the Joint Registrar for completion of
pleadings viz-a-viz defendant Nos.2 on 24th February,
2010."
6. The review application is allowed in the above terms.
September 08, 2010 SHIV NARAYAN DHINGRA, J.
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