M/S Abhishek Enterprises & Anr vs M/S M.D.Overseas Ltd
2013 Latest Caselaw 1638 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+         FAO No.477/2012 & CM 19984/2012 (stay)

                                       Decided on : 10th April, 2013

M/S ABHISHEK ENTERPRISES & ANR.         ...... Appellants
              Through: Mr.Hamid Ali, Adv.

                      Versus

M/S M.D.OVERSEAS LTD.                        ......      Respondents


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal against the order dated 25.9.2012 passed by the

learned ADJ in Civil Suit no.1038/2000 (in M. No.3/2012) by virtue of

which the application of the appellant under Section 5 of the Limitation

Act seeking condonation of delay in filing the application under Order 9

Rule 13 CPC for setting aside ex-parte decree.

2. I have heard learned counsel for the appellant and gone through the

record.

3. The main contention of the learned counsel for the appellant has

been that the learned ADJ has fallen into an error by not condoning the

delay in filing the application under Order 9 Rule 13 CPC, although,

'reasonable explanation' was given for non-appearance and for not filing

any application despite having learnt about the passing of the ex-parte

decree. It will be pertinent here to mention that it was not disputed by the

appellant that he learnt about the passing of the ex-parte decree in the

month of April, 2011 while an application for setting aside ex-parte

decree was filed on 6.1.2012 alongwith an application under Order 9 Rule

13 CPC. The ground sought for the period of delay exceeding more than

30 days was explained by contending that the father of the appellant was

ill, therefore, the application could not be filed in time.

4. I have carefully considered the submissions made by learned

counsel and gone through the record. The respondent had filed suit under

Order 37 of the CPC for recovery of `19 lakhs or so against the appellant.

This suit was filed in the Delhi High Court.

5. Notices were issued to the applicant/defendant. However, the said

notices were received back unserved. Since it was not possible to serve

the applicant/defendant by ordinary process, accordingly, the Court had

ordered that he be served through substituted service by way of

publication in newspaper `Statesman' as well as by affixing a copy of the

notice on the notice board of the court at the last known address of the

defendant. All steps were taken by the plaintiff. The appellant/defendant

did not appear and consequently he was proceeded ex-parte. The suit was

transferred to the District Court on 18.9.2003 because of enhancement of

pecuniary jurisdiction and an ex-parte judgment and decree was passed

against the appellant on 31.3.2004.

6. The appellant/defendant had purportedly issued some cheques

which were also dishonoured and accordingly, he was facing prosecution

under Section 138 of the Negotiable Instrument Act. It was during the

pendency of the said proceedings that the appellant learnt that the

plaintiff obtained an ex parte order in the month of April, 2011. The case

of the appellant was that in the suit for recovery there was no mention

about the criminal complaints having been filed by the plaintiff under

Section 138 of the Act nor any sincere efforts were made by the plaintiff

to serve in those proceedings so far as the civil suit is concerned.

7. In any case, despite having learnt about the ex-parte decree in the

month of April, 2011 the appellant filed an application under Order 9

Rule 13 CPC for setting aside the ex-parte proceedings on 6.1.2012

alongwith an application under Section 5 of the Limitation Act. Reason

for delay in filing the application under Order 9 Rule 13 CPC given in the

application was serious illness of the father of the applicant. This

explanation regarding the seriousness of the father of the applicant was

not accepted by the court of learned ADJ because no details regarding the

ailment, period of illness when he recovered from the illness were

mentioned in the application. The learned ADJ observed that the

averments made in the application seeking condonation of delay were

vague. This explanation given by the appellant/defendant was not

accepted by the Court in the light of the fact that the

respondent/defendant specifically pleaded that the appellant had appeared

in the proceedings under Section 138 of the Act on 26.7.2011, 5.10.2011,

1.12.2011 and 15.12.2011 in the proceedings u/S 138 of the NI Act. This

clearly belies that the illness of his father had made him immobile and the

application could be filed by him only on 6.1.2012. This explanation was

disbelieved by learned ADJ holding that the appellant/defendant was not

diligent in approaching the court and the reasons for his absence or for

delayed filing the application did not constitute 'sufficient cause'. The

conduct of the appellant /defendant construed as a callous and grossly

negligent. The same plea has also been urged before this Court.

8. I do not find that any reasonable person can draw any conclusion

other than the one which has been drawn by the learned ADJ having

regard to the facts of the case. Apart from this no doubt the law regarding

condonation of delay has to be construed liberally in favour of a party but

such a liberal approach cannot be adopted so as to pay premium on the

gross negligent conduct of a party and also put premium on the dishonest

litigant. The appellant is not an individual but a company and therefore

absence or the difficulty of one person would not have brought the

functioning of the company to a grinding halt.

9. In addition to this on 30.11.2012 when notice was issued this Court

had directed the appellant to deposit 50% of the decretal amount with the

Registrar General of this Court. This amount was also not deposited till

date. Although more than four months have passed, these facts also show

that the appellant plaintiff is not a bonafide person but wants to prolong

the litigation.

10. I accordingly feel that the learned ADJ was perfectly right in

observing that as the appellant/defendant has not been able to show any

sufficient cause for coming to the Court belatedly in filing the application

has rightly rejected the application. Since the application itself for

condonation of delay has been rejected, the application under Order 9

Rule 13 CPC also stands dismissed.

V.K. SHALI, J.

APRIL 10, 2013 'ns'