Priyanka Construction (Baroda) ... vs Kla Constructions Technologies ...
2013 Latest Caselaw 201 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+ F.A.O. NO.371 OF 2012 & C.M. NO.14932 OF 2012 (FOR STAY)

                                        Decided on : 14th January , 2013

PRIYANKA CONSTRUCTION (BARODA) (P) LTD. ..... Appellant
            Through: Mr. Ritesh Mehra, Advocate.
                     versus

KLA CONSTRUCTIONS TECHNOLOGIES P. LTD. ..... Respondent
            Through: Mr. Sohan Lal, Advocate.

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

V.K. SHALI, J. (ORAL)

1. This appeal has been filed by the appellant against the order dated

25.5.2012 by virtue of which the learned Additional District Judge

dismissed the application of the appellant under Order IX Rule 13 CPC

for setting aside ex-parte decree passed against the appellant on

23.11.2010 and an application under Section 5 of the Limitation Act.

2. I have heard the learned counsel for the appellant and have also

gone through the impugned order. I do not find any infirmity, illegality

or incorrectness in the finding recorded by the learned Additional District

Judge so as to warrant interference by this court.

3. Briefly stated the facts of the case are that respondent M/s. KLA

Constructions Technologies Pvt. Ltd. filed a suit for recovery of

approximately `11 lacs against the appellant. The appellant, on being

served, filed written statements and contested the matter stoutly. When

the matter was at the stage of appellant/defendant's evidence, it tried to

dodge the court and delay the disposal of the suit. This is evident from

the fact that the appellant had started examination of his defence by

examining one DW-1. Thereafter, the appellant did not appear nor DW-1

was made available for the purpose of cross-examination by the

respondent-plaintiff. Even counsel did not appear. With the result, the

appellant-defendant was proceeded ex-parte by the trial court on

26.10.2010 and a judgment and decree was passed against the appellant

on 23.11.2010. The respondent-decree holder had filed execution

petition. It is at this stage that the appellant herein chose to put in

appearance and filed an application under Order IX Rule 13 CPC on

20.3.2012. By this time, a year and a half had already passed from the

date of decree.

4. In the application, the plea which was set up for setting aside ex-

parte decree was that the counsel for the appellant had met with an

accident and he was not able to attend the court on account of some

personal problems. Along with the application seeking setting aside of

the ex-parte decree, an application seeking condonation of delay was also

filed wherein similar averments were made. But in neither of the two

applications, the name of the counsel had been given nor the date of the

accident, the medical record or the date when the counsel started going to

court or for that matter, the date when he learnt about the ex-parte decree

having been passed against the appellant-defendant has been given. It is

also very strange that despite the fact that the counsel had chosen not to

appear in the matter, the appellant, has taken no action against him either

by removing him or making a complaint to the bar council or by sending

him a letter of displeasure. These facts clearly show that this plea of the

appellant is not bona fide and it is a cooked up story only for getting the

ex-parte decree set aside.

5. The second submission which the learned counsel for the appellant

made was that the then counsel did not keep the appellant-defendant

informed about the progress in the case. It is stated that the counsel had

intimated that as and when the case would arrive at the stage of evidence,

the appellant will be informed and at that point of time he will appear.

This is also a false plea inasmuch as the defendant had already filed an

affidavit of DW-1 in its defence. So there was hardly any occasion for

the learned counsel for the appellant to intimate that the case is yet to

arrive at the stage of defendant's/appellant's evidence. This coupled

with the fact that the name of the counsel has not been disclosed goes to

show that this plea is also a false plea.

6. Another plea which is dealt with by the trial court is that the case

was going on for compromise and the defendant/appellant had not been

apprised of the case. In this regard also the trial court has noted that the

mediation proceedings between the parties had failed in January, 2010,

while as the appellant-defendant had appeared on 25.5.2010 as DW-1.

Therefore, all these facts clearly show that the entire exercise of the

appellant was to deprive the court an opportunity to decide the case

expeditiously on merits. This endeavour of the appellant has failed on

account of expeditious disposal of the case by the trial court by setting

them ex-parte. I do not find any infirmity in the order passed by the trial

court inasmuch as absolutely 'no sufficient cause' has been shown by the

appellant for allowing the application under Order 9 Rule 13 CPC for

setting aside the ex-parte decree or even for that matter for condoning the

delay in filing the said application belatedly.

7. Accordingly, both the applications were rightly dismissed by the

trial court. This appeal does not have any merit and accordingly, the

same is dismissed.

V.K. SHALI, J.

JANUARY 14, 2013 'AA'