Narender Singh Narang vs Harsha Capital Services Ltd.
2014 Latest Caselaw 478 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Date of Decision: 24.1.2014
+     CM(M) 232/2013

      NARENDER SINGH NARANG                  ..... Petitioner
                   Through: Mr. Dinesh Kumar, Adv.

                          versus

      HARSHA CAPITAL SERVICES LTD.                         ..... Respondent

Through: None.

% MR. JUSTICE NAJMI WAZIRI (Open Court)

C.M.No.13057/2013(for restoration)

1. This application has been moved for restoration of the petition

which on 22.07.2013 was dismissed on account of non appearance of

counsel. It is submitted that the failure to appear was on account of the

counsel's indisposition - asthma and fever on that date. The medical

prescription qua the same date has been annexed to the application. The

affidavit supporting petition is dated 12.08.2013. This court deems it

proper to restore the petition for the grounds mentioned in the application.

Application is allowed. Petition is restored.

CM(M) No.232/2013

2. The petitioner impugns an order dated 15.12.2012 whereby the

petitioner's (defendant's) application for condonation of delay in filing

memo of appearance in Suit No.250/2011 under Order 37 Rule 3(7) CPC

was dismissed. The memo of appearance was filed on 28.1.2012 whereas

the summons as per Order 37 Rule 3 CPC was first sent in September,

2011 and finally served on 26.12.2011; there was a delay of more than

four months from the date of service of summons and the memo of

appearance was barred by time, and there was no special circumstance

made out to condone the delay. The Trial Court reasoned that summons

were also issued through registered covers and affixation at the

defendant's address at S-210, First Floor, Greater Kailash, Part-II, New

Delhi-48. Appearance was entered on 24.1.2012. On 28.12.2012, an

application was filed seeking condonation of delay in appearance. The

statutory period of ten days from the service of summons had long since

passed. The reasons offered for condonation of delay were that the

petitioner was travelling outside Delhi and only upon his return on 6th

January, 2012 he found the notice in the morning of 7th January, 2012.

He attended Dwarka Courts at 2.00 pm but fell ill and could not

communicate with his counsel regarding the litigation. His treatment

continued upto 17.1.2012 and he consulted his lawyer only on 21st

January, 2012 since the latter was engaged in professional work in the

High Court at Allahabad. The learned counsel submits that the delay was

not intentional but occasioned on account of the petitioner's first being

out of station and then falling ill and subsequently his lawyer was out of

station. He relied upon the medical certificate and travel cash memo of a

bill to authenticate his contention. The Trial Court considered the

medical certificate dated 8.1.2012 unreliable since the defendant being

the resident of Greater Kailash had produced a certificate of a Doctor

operating his clinic at Sabzi Mandi, Janakpuri, New Delhi which are at

the opposite ends of the city. Furthermore, nothing was placed on record

to support the claim that the defendant had undergone some medical

treatment for the period of the delay. The Court also considered that

similar medical certificates had been issued by the same Doctor, in

proceedings pending between the parties in a criminal complaint under

Section 138 of the Negotiable Instruments Act. It reasoned that if the

defendant could appear before the Dwarka Courts at 2.00 pm in another

proceedings, there was no reason for the delay in filing the appearance in

the suit. Thirdly, that the cash bill for travel from Delhi to Amritsar on

7.1.2012, was issued by a travel agency of Mall Road, Tilak Nagar, New

Delhi whereas the defendant was a resident of Greater Kailash, Part-II,

New Delhi. The aforesaid reasons were found unconvincing hence the

application for condonation of delay was dismissed. This Court has

considered the facts and circumstances of the case, the reasons for and the

conclusion arrived at in the impugned order do not call for any

interference. The view taken is plausible both in the facts and in law.

The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JANUARY 24, 2014/ak