M/S. Shamken Multifab Ltd. vs Satyam Packers
2014 Latest Caselaw 4661 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CM(M) No.700/2011 and C.M. No.11257/2011 (stay)

%                                                     19th September, 2014

M/S. SHAMKEN MULTIFAB LTD.                             ......Petitioner
                  Through:               Mr. Mohit Chadha, Advocate.



                           VERSUS

SATYAM PACKERS                                         ...... Respondent

                           Through:      None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 24.2.2011 by which the trial court has

dismissed the application filed under Order XXXVII Rule 4 of Code of Civil

Procedure, 1908 (CPC) by the petitioner/defendant.

2. The subject suit under Order XXXVII CPC was decreed by the

judgment dated 18.11.2009 on account of the petitioner/defendant, allegedly

having failed to file appearance. The case of the petitioner/defendant in the

application under Order XXXVII Rule 4 CPC is/was that its counsel in the trial

court Sh. Ajay Singh, Advocate had filed the appearance with the Reader of the

court but the Reader of the court had not put the appearance on the court file.

Sh. Ajay Singh, Advocate also filed such an affidavit dated 4.12.2009 before

the trial court.

3. A reading of the appearance which is/was said to have filed on

behalf of the petitioner/defendant shows that the same is accompanied by the

speed post slip, and which speed post slip is dated 28.8.2009, and obviously

therefore there cannot be any doubt at least with respect to sending of the copy

of the appearance to the respondent/plaintiff in the present case by registered

post. In fact, before the respondent/plaintiff was successful in obtaining the

judgment and decree on 18.11.2009, the respondent/plaintiff should have stated

to the trial court the aspect with respect to receipt of notice of the appearance by

post, but, it appears that this aspect was possibly concealed from the trial court.

4. There is no reason for this Court to disbelieve an Advocate who

has filed his own affidavit that he gave to the Reader of the court the

appearance, and that the same was not put on the court record, and which has to

be accepted more so because the appearance was accompanied by a postal slip

dated 28.08.2009 which cannot be manipulated and which postal slip shows

sending of the appearance to the respondent/plaintiff.

5. The respondent herein does not appear in this Court instead of

service by publication.

6. In view of the above, this petition is allowed. Impugned judgment

and decree dated 18.11.2009 is set aside. Respondent/plaintiff will now pursue

the suit further, if it so wants, by filing an application for service of summons

for judgment, and which if served, petitioner/defendant will file its leave to

defend application in accordance with law. Parties are left to bear their own

costs.

SEPTEMBER 19, 2014                                    VALMIKI J. MEHTA, J
Ne