Ravinder Pal Singh Bawa vs Meenakshi Marwah
2012 Latest Caselaw 6897 Del

$~10
*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) 2450/2009

                               Date of decision : 3.12.2012

IN THE MATTER OF :

RAVINDER PAL SINGH BAWA                 ..... Plaintiff
               Through  Mr.R.K. Dhawan and Ms. Shweta
                        Joshi, Advocate

            versus

MEENAKSHI MARWAH                               ..... Defendant
             Through          Mr.Rajiv Duggal, Advocate


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

I.A.No.8917/2012 (by the defendant u/Section 151 CPC)

1.

This application has been filed by the defendant praying inter

alia for grant of permission to inspect the court file and take

photographs of the signatures on the Agreement dated 23.3.2009

and on the original cheques, which are the subject matter of the

present suit.

2. Counsel for the defendant submits that the Sale Agreement

dated 23.3.2009 relied upon by the plaintiff, is a forged document

and that it does not bear the signatures of the defendant and to

establish the said fact before the learned Metropolitan Magistrate, in

whose court a complaint filed by the plaintiff under Section 138 of

the Negotiable Instruments Act is pending, the defendant be

permitted to take photographs of the signatures on the Agreement

dated 23.3.2009 and also of the signatures on the original cheques

that form the basis of the present summary suit. He goes on to

state that even if the defendant is not permitted to photograph the

original cheques, she be permitted to take photographs of the

original Sale Agreement dated 23.3.2009.

3. If it is the case of the defendant that she is required to

adduce evidence before the learned Metropolitan Magistrate in a

complaint case filed by the plaintiff against her, under Section 138

of the N.I. Act, then it is for her to take necessary steps to summon

the relevant records in accordance with law. The prayer made

herein for permission to take photographs of the original

documents, upon inspection of the court file is declined.

4. The application is dismissed as being devoid of merits.

IA No. 6380/2010 (by the defendant u/O 37 R.3)

1. Counsel for the plaintiff states that the leave to defend

application filed by the defendant is barred by limitation for the

reason that service of the summons for judgment was effected on

the defendant on 29th March, 2010 and on 30th March, 2010 at the

addresses that were given by her in the memo of appearance as

well as on the previous certified copies. The service certificates

issued by the courier agency are stated to be on record. He submits

that if it is assumed that the defendant was served with the

summons for judgment on 30th March, 2010, then she ought to

have filed an application for leave to defend within ten days

reckoned from the said date, i.e., on or before 10 th April, 2010.

However, the present application was not filed by her within the

prescribed period, but on 10th May, 2010.

2. Learned counsel for the plaintiff further submits that process

was also sent through process server of this court and was received

by an official of the defendant and the receipt is dated as 23rd April,

2010. Thus, if the date of 30th March, 2010 is ignored and the date

of service is taken as 23.4.2010, then the leave to defend

application could have been filed by the defendant within ten days

reckoned therefrom, i.e., on or before 3rd May, 2010. However, the

defendant has filed the present leave to defend application on 10th

May, 2010, and that too without supporting the same with an

application for condonation of delay and thus, the present

application is liable to be dismissed as being barred by limitation.

3. Learned counsel for the defendant states that the previous

counsel for the defendant was served with the summons of

judgment on 26th April, 2010 and therefore, the said date ought to

be reckoned as the correct date for calculating the period of ten

days for filing the leave to defend application. He further submits

that if the suit is adjourned today, he shall take necessary steps to

file an application for seeking condonation of delay.

4. It is pertinent to note that the present leave to defend

application was filed by the defendant on 10th May, 2010 and a

reply thereto was filed by the plaintiff on 6th July, 2010. In para-1

of the preliminary objections, the plaintiff has taken an objection as

to the limitation aspect and he has stated therein that the leave to

defend application is not accompanied by an application for

condonation of delay and therefore, the same is liable to be

rejected. It is therefore stated on behalf of the plaintiff that it is

not as if the defendant has been confronted with the limitation issue

only today, rather she was well aware of the said objection, taken

by the plaintiff for the past over two years.

5. Learned counsel further states that the defendant has not

chosen to rebut any of the submissions made by the plaintiff in his

reply as she has failed to file a rejoinder to the reply and therefore,

the averments made in the reply should be deemed to be true and

correct. Learned counsel for the plaintiff submits that moreover, the

right of the defendant to file the rejoinder to the reply was closed

on 20th January, 2012 and therefore, it is too late in the day for the

counsel for the defendant to seek further time to file an application

for condonation of delay.

6. The Court has heard the counsels for the parties. The

provisions of Order 37 that deals with summary suits are clear and

unequivocal. The defendant is required to file a leave to defend

application within the timeline prescribed under Order XXXVII Rule

3(5) of the CPC, which stipulates a period of ten days for filing an

affidavit disclosing the facts that are deemed sufficient to claim

leave to defend.

7. A perusal of the record reveals that vide order dated 18 th

December, 2009, notice was issued to the defendant in the

prescribed manner, returnable before the Joint Registrar on 17th

February, 2010. Thereafter, the defendant had filed an application

under Order XXXVII Rule 3(1) of the CPC for putting in appearance

wherein she had furnished two addresses for effecting service upon

her, i.e., an address of a commercial complex at Dr. Mukherjee

Nagar, Delhi and the chamber address of her previous counsel,

Ms.Kavita Kapil.

8. On 12th March, 2010, notice was issued on the application for

summons of judgment, filed by the plaintiff and registered as IA No.

3084/2010.

9. A perusal of file reveals that the clerk of the previous counsel

for the defendant was duly served with the summons of the

judgment through the process server on 26th April, 2010 and much

prior thereto, the defendant herself was served with the summons

on 30th March, 2010. Additionally, service was effected on the

counsel for the defendant through courier on 29th March, 2010.

Even if 26.4.2010 is taken as the date on which summons of

judgment were served on the defendant, then the leave to defend

application ought to have been filed by the defendant on or before

6.5.2010. But admittedly, the present application was filed

thereafter, on 10.5.2010. In such circumstances, it does not lie in

the mouth of the defendant to claim that the leave to defend

application has been filed within the period prescribed in law.

10. Further, the submission made by learned counsel for the

defendant that an opportunity be given to him, to file an application

for condonation of delay cannot be acceded to at this stage for the

simple reason that the defendant was well aware of the objection

taken by the other side as long back as about two years ago and

yet no steps were taken by her to file an application for condonation

of delay.

11. In the absence of an application for condonation of delay for

explaining the delay for in filing the leave to defend application, this

court has no option but to dismiss the present application as having

been filed beyond the period prescribed in the statute.

12. In view of the above facts and circumstances, the present

application is rejected being barred by limitation.

CS(OS) No. 2450/2009

1. The plaintiff has filed the present suit under the provisions of

Order XXXVII of the CPC for recovery of a sum of `78,18,723.12/-

2. Learned counsel for the plaintiff submits that the plaintiff is a

dealer in cotton fabric and the defendant, who is the proprietor of

M/s. Bitum Impex, had approached the plaintiff to purchase fabrics.

As set out in para-4 of the plaint, various lengths of cloth were

supplied by the plaintiff to the defendant on 2.3.2009 and on

9.3.2009, at different rates as mentioned in the invoices mentioned

in para-4 of the plaint. On 23rd March, 2009, a Sale Agreement-

cum-Payment Receipt was executed between the parties

whereunder the defendant had handed over a post dated cheque

bearing No.39040 dated 16.5.2009 for `78,18,723.12/- to the

plaintiff with an assurance that the same would be honoured on

presentation.

3. However, when the aforesaid cheques were presented by the

plaintiff on the due dates, they were all dishonored by the

defendant's banker with the remarks that there were "insufficient

funds" in the account of the defendant. It is submitted that within a

month of the cheque being dishonoured, the plaintiff had issued a

legal notice to the defendant on 26th October, 2009 and thereafter,

he had filed a complaint under Section 138 of the Negotiable

Instruments Act which are pending adjudication.

4. Documents in support of the averments made in the plaint

have been placed on record, including the original dishonored

cheques and the intimation of dishonour by the bankers of the

defendant. Learned counsel for the plaintiff further states that till

date, the defendant has not made any payment to the plaintiff in

lieu of the dishonored cheques.

5. The present suit has been instituted by the plaintiff for

recovery of a sum of `78,18,723.12/- from the defendant. In

addition, the plaintiff claims interest on the aforesaid amount @24%

per annum from the date of the dishonor of the cheque, till

realization, with costs.

6. As noticed above, summons in the suit were issued to the

defendant and she had duly entered appearance and filed her memo

of appearance, whereafter, summons of judgment were issued.

However, after being served with the summons of judgment, the

defendant had failed to file the leave to defend application within

the timeline prescribed in the CPC. Nor did the defendant take any

steps to file an application for seeking condonation of delay in filing

a belated leave to defend application. As a result, the said

application has been rejected by a separate order passed today.

7. The leave to defend application of the defendant having been

dismissed as being barred by limitation, the allegations in the plaint

are deemed to be true and correct and admitted by her. In view of

the above, the present suit is decreed in favour of the plaintiff for a

sum of `78,18,723.12/- with simple interest calculated @10% per

annum from the date of institution of the present suit, till

realization. The plaintiff shall also be entitled to costs in the suit,

along with the counsel's fee quantified at `30,000/-.

8. Decree sheet be prepared accordingly.

HIMA KOHLI, J DECEMBER 03, 2012 rs/mk/sk