Ishwar Saini vs M/S. Videocon Industries Ltd. & ...
2015 Latest Caselaw 6910 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

                                          Decided on: 14th September, 2015
+      C.R.P. No.133/2015
       ISHWAR SAINI                                        ..... Petitioner
                           Through:       Mr. Manish Kapur, Advocate

                           versus

    M/S. VIDEOCON INDUSTRIES LTD. & ANR. ..... Respondents
                  Through:
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM APPL.18733/2015 (exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of.

CM APP.18732/2015 (delay in re-filing) & CM APP.18734/2015 (delay in filing) Delay of 20 days in filing and delay of 22 days in re-filing the

revision petition is condoned as "sufficient cause" is shown.

Both the applications stand disposed of.

C.R.P. No.133/2015

1. This is a revision petition filed by the petitioner against the order

dated 10.03.2015 by virtue of which the application of the

petitioner under Order IX Rule 13 CPC was dismissed as barred by

limitation.

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

Videocon Industries Limited filed a suit for recovery of

Rs.13,16,115/- against Ishwar Saini, Proprietor M/s. Saini

Electronics Palace, Rohini, Delhi. It was pleaded in the suit that

the present petitioner-defendant (Ishwar Saini) on account of the

business transaction owed the aforesaid amount to the respondent-

plaintiff (M/s. Videocon Industries Limited) and since despite

demand he had failed to pay the amount, consequently the suit for

recovery along with interest @ 15% per annum was filed by M/s.

Videocon Industries Limited. Notices were issued to Ishwar Saini,

however, he did not put in appearance despite sufficient service

and consequently was proceeded ex-parte. After recording of ex-

parte evidence, a decree for a sum of Rs.13,16,115/- along with

interest @ 15% per annum from the date of institution of the suit

till realization of the amount was passed with proportionate costs

by the learned Additional District Judge, North-West III, Rohini

Courts, Delhi against the petitioner on 20.10.2011.

3. The petitioner (Ishwar Singh) filed an application under Order IX

Rule 13 CPC for setting aside the ex-parte decree against him. It

was alleged in the application that he learnt about the decree

having been passed against him (the defendant) by a notice of

execution proceedings on 10.11.2014. Thereafter, he filed an

application under Order XXI Rule 26 CPC in the Court on

14.11.2014 for not only setting aside the order but also that the

aforesaid decree was obtained by conspiracy. Accordingly, it was

prayed that the decree be set aside. The petitioner also filed an

application for setting aside the execution proceedings. The Court

did not oblige the petitioner by setting aside the proceedings and as

a consequence, the petitioner was constrained to file an application

under Order IX Rule 13 CPC read with Section 151 CPC for

setting aside the ex-parte decree.

4. The contention of the learned counsel for the petitioner is that the

application for setting aside the ex-parte decree was dismissed by

the learned ADJ without adhering the broad principles of law and

also without taking into consideration the fact that the petitioner

learnt about the decree only on 14.11.2014 and that too after sunset

when he was in the office. Accordingly, it is prayed that the present

petition be allowed and the decree and judgment dated 20.10.2011

be set aside.

5. I have carefully considered the submission made by the learned

counsel for the petitioner. The main contention of the learned

counsel for the petitioner is that his application under Order IX

Rule 13 CPC has been dismissed by the learned Judge as barred by

limitation on the ground that there is no application filed under

Section 5 of the Limitation Act seeking condonation of delay in

filing an application under Order IX Rule 13 CPC. It has been

contended by the learned counsel for the petitioner that filing of an

application under Section 5 of the Limitation Act is not necessary

in case the petitioner is able to show from the application under

Order IX Rule 13 CPC or from the record that there was delay and

that there was sufficient cause for the same prevented the petitioner

from filing an application in time. For this purpose, the learned

counsel for the petitioner has relied upon a judgment of this Court

in Universal Builders and Contractors v. Sheila Singh Uppal &

Ors., 154 (2008) DLT 69 wherein it has been held that even

without there being a formal application under Section 5 of the

Limitation Act, the Court is competent to condone the delay in case

the same is being substantially advanced in the terms of reference

of the petition or the accompanying documents filed on record.

6. I have carefully considered the submission and have gone through

the record. There can be no dispute about the proposition of law

laid down by the learned Single Judge of this Court wherein it has

been categorically reiterated that filing of an application under

Section 5 of the Limitation Act is not sine qua non for condonation

of delay.

7. But the said case is of no assistance to the respondent in the present

case as no ground for sufficient cause is reflected even from the

averments made in the application under Order IX Rule 13 CPC.

As a matter of fact, the application under Order IX Rule 13 CPC is

curiously silent as to what prevented the petitioner from

prosecuting the matter after service having been effected. The

learned ADJ has referred to Article 123 of the Limitation Act and

observed that the period of limitation within which the ex-parte

decree deserves to be set aside is 30 days.

8. In the instant case, it is not in dispute that the present petitioner

came to know about ex-parte decree having been passed against

him on 20.10.2011 on 14.11.2014 itself. Yet, no steps were taken

to prosecute the matter. Even if the petitioner is deemed to have

been served with summons under Order XVI read with Section 151

CPC on 10.11.2014, still the application for setting aside the ex-

parte decree has to be filed within a period of 30 days.

9. In the instant case, not only the petitioner learnt about the matter

having been decreed against him on 14.11.2014 yet he filed the

present application on 09.03.2015. According to Article 123 of the

Limitation Act to which reference has been made by the learned

ADJ, the application under Order IX Rule 13 CPC has to be filed

within 30 days from the date of decree. Even if for the sake of

argument the date of decree is assumed to be 14.11.2014, that is the

date when he learnt about it, still the application has been filed

after considerable delay of more than 100 days which is way

beyond the prescribed period of limitation. As a matter of fact the

decree has been passed in the year 2011 and calculated from the

said date, the application is highly belated. Even when filing the

present appeal, the petitioner has shown his casual approach in as

much as there is a delay of 20 days in filing the petition and 22

days in re-filing the revision petition which clearly shows that the

petitioner is taking this for granted as if the delay will be condoned

as a matter of course. This cannot be permitted to be done.

10. I do not find that there is any jurisdictional error or impropriety or

illegality in the order of rejection passed by the learned ADJ.

Accordingly, the revision petition is dismissed.

11. File be consigned to record room.

V.K. SHALI, J.

SEPTEMBER 14, 2015 vk