Agrbandhu Footwears P.Ltd vs Dayanand Jain
2012 Latest Caselaw 2879 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment:01.05.2012

+     CM(M) 842/2008 & CM No. 9902/2008


AGRBANDHU FOOTWEARS P.LTD.                ..... Petitioner
                   Through Mr. Shambhu Prasad Singh, Sr.
                           Advocate with Ms.Manjula
                           Gupta, Adv.
            versus

DAYANAND JAIN                                    ..... Respondent
                         Through      Mr. Ajay Mehra, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned judgment is dated 26.03.2008 vide which the

application filed by the defendant under Order XXXVII Rule 4 read

with Section 151 of the Code of Civil Procedure (hereinafter referred to

as the 'Code') seeking a setting aside of the judgment and decree dated

05.12.005 had been dismissed.

2 Record shows that the present suit has been filed by the plaintiff

under Order XXXVII of the Code. The defendant had appeared and was

represented through his counsel; power of attorney was filed; contention

of the defendant was that he misunderstood the provisions of Order

XXXVII of the Code and was not aware of the fact that the memo of

appearance is required to be filed within the stipulated period of 10

days; after his appearance on 30.08.2005, matter was adjourned for

27.09.2005. The contention of the defendant was that the date was

wrongly noted in his diary as 28.09.2005.

3 Record shows that the summons were sent to the defendant by

ordinary process, registered A.D. as also by speed post; receipt of

dispatch of notice by speed post had been placed on record by the

plaintiff. The registered A.D. envelop was also a part of the record;

report of the process server on the ordinary process was to the effect that

the defendant had refused the summons. These summons were sent in

the prescribed format meant for suits under Order XXXVII of the Code.

There is also no dispute to the factum that the defendant had filed the

power of attorney of his Advocate duly signed by the defendant.

4 Provisions of Order XXXVII of the Code are clear and

categorical. Once summons have been issued in the prescribed format

pursuant to which the defendant has put an appearance, the procedure

contained therein has to be mandatorily followed; if this is not done, the

purport and import of the summary procedure as contained in this

aforenoted provision of law which is for a special class of suits would be

defeated and this is not the intent of the legislature.

5 It is not the case of the defendant that he was not aware of the

procedure; he had appeared through his counsel and signed the power of

attorney for his counsel; however thereafter he chose not to appear; he

did not file his memo of appearance within the period prescribed. This

period of 10 days had expired on 10.09.2005; appearance of the

defendant through his counsel Mr. Sandeep Singh had been noted in the

order of the Court dated 30.08.2005. On 27.09.2005, again none had

appeared for the defendant and so also the subsequent date i.e. on

20.10.2005.

6 Record further shows that the present suit is a suit for recovery of

Rs.1,77,436/-. The plaintiff claims himself to be the sole proprietor of

M/s Jai Gopal Enterprises; parties had business transactions; the

defendant was purchasing goods from the plaintiff on invoices/bills duly

acknowledged by the defendant. As per the accounts maintained by the

plaintiff, a sum of Rs1,77,436/- was the balance outstanding due from

the defendant as on 19.02.2005; as per the contract between the parties,

the defendant was also liable to pay interest @ 24% per annum on each

bill which amounted to Rs.16,038.50 paise; pendent-lite and future

interest was also claimed. Suit on the aforenoted pleadings and

documents annexed along with was maintainable under Order XXXVII

of the Code; objection of the petitioner on this count is without any

merit.

7 It has thus been established that the memo of appearance which is

a mandatory requirement had not been filed within the stipulated period

of ten days. Order XXXVII (2) & (3) makes is absolutely clear that a

defendant shall not be allowed to defend the suit unless he first enters

his appearance; it categorically provides that in default of entering

appearance allegations in the plaint shall be entitled to a decree for a

sum as prayed for along with interest and costs as may be determined by

the Court. Consequently, on the defendant's default in entering

appearance, the Court has little option but to pass a decree against non-

appearing defendant as was done in the instant case. Allegations in the

plaint had been rightly adverted to by the trial Court pursuant to which

the decree has been followed in favour of the plaintiff.

8 No special circumstances have been made by the

petitioner/defendant. For invoking this rule, the defendant must satisfy

the twin conditions i.e. (i) that there was no valid service of summons

upon the defendant or that he was prevented by sufficient cause from

getting leave to defend and (ii) through a sufficient defence, raised in the

suit. Before the ex parte decree is set aside the court must be satisfied

that there were special circumstances entitling the petitioner/defendant

to get such a relief. Each case would depend upon on its own facts.

9 Admittedly the defendant has been served of the aforenoted

provisions; his Advocate's power of attorney was on record. Thus the

submission that there was no due service of summons in the suit fails;

no sufficient cause for non-appearance on the aforenoted dated i.e. on

27.09.2005, 20.10.2005 and thereafter on 17.11.2005 (when the ex-parte

judgment was passed) have been detailed; even presuming that the

petitioner had wrongly noted the date as 28.09.2005, there is no

explanation for his non-appearance on the subsequent date on

20.10.2005; the present application came to be filed only in November,

2005. The application under scrutiny also does not disclose the special

circumstances qua the defence which the defendant wishes to raise. The

impugned judgment decreeing the suit of the plaintiff on 17.11.2005

thus suffers from no infirmity as no special circumstance has even

prima-facie been established by the defendant/petitioner in terms of his

averments made in his application under Order XXXVII Rule 4 of the

Code. Impugned order calls for no interference.

10    Petition is without any merit. Dismissed.




                                            INDERMEET KAUR, J
MAY       01, 2012
A