M/S. Shivam Enterprises vs M/S. Creation Point
2013 Latest Caselaw 3266 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                IAs. 3421, 3407 & 3408/2013 in CS(OS) 2693/2012

                                                           Date of Decision: 29.07.2013

M/S. SHIVAM ENTERPRISES                                             ...... PLAINTIFF

                                     Through:           Mr.Rajat Wadhwa, Adv.

                                               Versus

M/S. CREATION POINT                                              ...... RESPONDENT

                                     Through:           Mr.A.K.Sakhuja,Mr.Puneet
                                                        Saini, Advocates.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

IA 3408/2013 (u/S 5 of Limitation Act), IA 3407/2013 (u/O 37 Rule 4 CPC for putting in appearance) & IA 3421/2013 (under Order 37 Rule 7 read with Order 9 Rule 13 read with Section 151 CPC seeking setting aside of ex parte decree dated 7.12.2012

1. These applications have been filed on behalf of the defendant

seeking filing of appearance and also leave to defend as also

condonation of delay in seeking these reliefs.

2. The plaintiff has filed a suit for recovery under Order 37 CPC,

which came to be decreed under Order 37 Rule 2(3) CPC on 7.12.2012

on account of the defendant having failed to file appearance. The

plaintiff has contested these applications. It is averred by the

defendant that though he was served of the summons in the suit on

16.10.2012, but he could not enter appearance for being busy in

attending his ailing mother, who was hospitalized with effect from

13.08.2012 to 20.08.2012 and again, on 31.10.2012 and 22.11.2012;

and ultimately, expired on 29.11.2012. It is averred that the defendant

had left the summons in his factory, and thereafter, lost track of the

same on account of continuous illness of his mother, and it was only in

the first week of January, 2013 that he found the papers and thereafter,

contacted his counsel. It was only on 13.01.2013 that he learnt from

the website of the High Court about the ex parte decree passed on

7.12.2012. It is thus prayed that his not filing appearance within the

ten days of the receipt of summons was not intentional or willful, but,

for the reasons beyond his control. Simultaneously, the defendant has

sought to put in appearance as contemplated under Order 37 (2) CPC.

For all these reasons, the condonation of delay in filing the appearance

is sought.

3. Having heard the learned counsel for the parties, it is noted that

the undisputed position is that the defendant was served of the

summons on 16.10.2012, and as per the provisions contained under

Order 37 (2) CPC, the defendant was to enter appearance either in

person or by a pleader within ten days of service. As per Order

37(3)(1) CPC, along with the appearance, he was also required to file

address for service of notices. Further, as per Sub-Rule 3 thereof, on

the day of entering appearance, notice of such appearance was also

required to be given to the plaintiff in person or his counsel, as the case

may be. Admittedly, the defendant had not entered appearance in the

manner as contemplated by these provisions. Further, as per Rule 2

Sub-Rule 3 of Order 37 CPC, the defendant could not defend the suit

unless he entered appearance and in default of his appearance, the

allegations contained in the plaint are deemed to be admitted and the

plaintiff entitled to a decree for a sum not exceeding the sum specified

in the summons, together with the interest, at the specified rate, if any.

4. Before proceeding to see the further averments of the defendant,

it may be noted that there is a distinction between the suits filed in the

ordinary manner and those filed under Order 37 CPC. Rule 7 of Order

37 specifically provides that except as provided thereunder the

procedures in suits under Order 37 shall be the same as the procedure

in suits instituted in the ordinary manner. Order 37 being a Code in

itself and provides the procedures till the time leave to defend is

granted to the defendant. It is only after the leave to defend is granted

that the procedure applicable to the suits instituted in an ordinary

manner will apply. Rule 4 of Order 37 specifically provides for setting

aside the decree, and therefore, the provisions of Order 9 Rule 13 CPC

will not apply to a suit filed under Order 37 CPC. In an application

under Order 9 Rule 13 CPC, if the defendant is set ex parte and that

order is set aside, he would be entitled to participate in the proceedings

from the stage he was set ex parte. But, in a suit under Order 37 CPC,

the procedure for appearance of the defendant is covered by the

provisions of Rule 3 thereof, and he is not entitled to defend the suit

unless he enters appearance within ten days of service of summons. A

reading of Rule 4 of Order 37 CPC shows that it empowers, under

special circumstances, the court which passed ex parte decree under

Order 37 to set aside the decree, and if necessary stay or set aside

execution, and may give leave to the defendant to appear to the

summons and to defend the suit.

5. The expression „special circumstances‟ appearing under Order

37 Rule 4 CPC was considered in the decision of Apex Court in Rajni

Kumar Vs. Suresh Kumar Malhotra and Another (2003) 5 SCC

315, and it was observed thus:

"9. The expression 'special circumstances' is not defined in the C.P.C. nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extra- ordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non- service of summons will undoubtedly be a special circumstance. In an application under Order 37, Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz., to give leave to the defendant to appear to the summons and to defend the suit".

6. Further, in the same judgment, the Apex Court also observed the

scope of Order 37 Rule 4 as under:

"11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the Court considers it reasonable so to do, on such terms as court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9".

7. Now, adverting to the averments of the defendant, it is noted that

in the applications which have been filed by the defendant for setting

aside the decree dated 7.12.2012, the only reason that has been

disclosed is that of the sickness of his mother. It was his case that his

mother was admitted in hospital from 13.08.2012 to 20.08.2012, and

thereafter, on 31.10.2012 and again, on 22.11.2012. So far as her

admission for a week in hospital in the month of August, 2012, it is

apparently much prior to the service of summons. Taking as correct

that his mother was admitted on 31.10.2012, but, it is not seen as to

when she was discharged and was re-admitted on 22.11.2012. Be that

as it may, the sickness or admission in hospital of the mother of the

defendant on these dates itself, in the given circumstances, cannot be

said to constitute „special circumstances‟. The defendant had stated

that he had kept his papers in his factory and was also not attending his

business activities regularly. Nothing is brought on record to show that

he did not attend his business after 16.10.2012 till his mother expired

on 29.11.2012. In any case, the defendant stated having found the

papers in the first week of January, 2013. That itself would show the

utter negligence of the defendant even after the death of his mother in

November, 2012. Moving further, the defendant stated having learnt

about the order only on the website of High Court on 13.01.2013. This

further establishes his negligence that despite having been served and

knowing about the case and that considerable time had passed, he did

not take step of even making appearance himself or through his pleader

uptil 1st February, 2013. There was no element of any „special

circumstances‟ set up by the defendant in not entering appearance as

per the provisions contained under Order 37 CPC.

8. Further, not only that there was no "special circumstance"

pleaded by the defendant, he did not say a word about his defence or

that the suit was not maintainable under Order 37 CPC or that he was

not able to pay any amount as claimed in the plaint.

9. In view of the above observations made by the Apex Court in

the case of Rajni Kumar (supra), as noted above, and the defendant

having failed to show by affidavit or otherwise, facts which would

entitled him leave to defend the suit, I do not see any reason to recall

the order dated 7th September, 2012.

10. In view of the above discussion, all the applications are hereby

dismissed.

M.L. MEHTA, J.

JULY29, 2013 akb