M/S Texmode vs M/S Sana Overseas Inc & Anr
2016 Latest Caselaw 6355 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 39/2016

%                                                              4th October, 2016
M/S TEXMODE                                                         ..... Appellant

                          Through:       Mr. Venkat Subramium and Mr. Rahat
                                         Bansal, Advocates.

                          versus

M/S SANA OVERSEAS INC & ANR                                     ..... Respondents

                          Through:       Mr. M. Salim, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RSA No.39/2016 and C.M. Appl. No. 3971/2016 (for stay under Order XLI Rule 5 read with Section 151 CPC)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by defendant no. 1 in the suit against the

impugned Judgment of the First Appellate Court dated 19.12.2015 by which the

first appellate court has dismissed the first appeal as being barred by time. Trial

court by its Judgment dated 12.2.2015 had decreed the suit of the respondent

no.1/plaintiff for recovery of a sum of Rs.2,51,500/- jointly and severally

against the appellant/defendant no. 1 and respondent no. 2/defendant no. 2. The

number of days of delay which have to be condoned is not mentioned in the

condonation of delay application, however, the delay for which condonation

will be sought would be from 13.2.2015 till 16.12.2015 when the application for

condonation of delay was filed. I may also at the outset state that the present

case is not a simple case of condonation of delay in filing the first appeal,

inasmuch as, the appellant as defendant no. 1 had appeared in the suit, filed his

written statement-cum-counter claim, but thereafter had not appeared in the suit

as a result of which he was proceeded ex parte vide Order dated 25.4.2005.

Appellant/defendant no. 1 had moved an application for setting aside the ex

parte proceedings against him but that application has been dismissed right till

the Supreme Court. The Special Leave Petition before the Supreme Court was

dismissed vide Order dated 7.10.2013 in default.

2. The respondent no.1/plaintiff filed the subject suit against two

defendants. Appellant was defendant no. 1 and defendant no. 2 was a Canadian

buyer with respect to the subject textile products. In the suit plaint, the

respondent no. 1/plaintiff in addition to pleading that the appellant/defendant

no. 1 placed order for the respondent no. 2/defendant no. 2, further pleaded in

the plaint that appellant/defendant no. 1 gave an assurance that in case the

Canadian buyer/respondent no. 2/defendant no. 2 failed to make the payment

then the appellant/defendant no.1 will be liable to make the payment. After the

appellant/defendant no. 1 was proceeded ex parte, respondent no.1/plaintiff has

led evidence. Respondent no.1/plaintiff has filed the affidavit by way of

evidence of its partner Md. Sheikh Naqi and it has been reiterated in this

affidavit by way of evidence that appellant/defendant no. 1 agreed to make the

payment in case of default of respondent no. 2/defendant no. 2/Canadian buyer.

Accordingly, the trial court decreed the suit by its Judgment dated 12.2.2015

jointly against both the defendants, i.e, appellant as defendant no. 1 and

respondent no. 2 as defendant no. 2 for a sum of Rs.2,51,500/- along with

pendente lite and future interest at the rate of 10% per annum. The issue in the

present second appeal is that whether there is sufficient cause for condonation

of delay from 13.3.2015 till 16.12.2015 because a period of thirty days is

provided for filing of first appeal against the Judgment dated 12.2.2015 and

consequently delay will have to be counted as commencing from 13.3.2015 as

the Judgment of the Trial Court is dated 12.2.2015.

3. The reasons given in the application for condonation of delay filed

by the appellant/defendant no. 1 before the first appellate court were that he was

not aware of the proceedings in the civil suit and came to know of the same

when he received notice of the execution proceedings in October, 2015

whereafter he told his counsel to take out the relevant documents/orders.

However, paragraph 6 of the application destroys the case of the

appellant/defendant no. 1 of coming to know of the decreeing of the suit only in

October, 2015, inasmuch as, in this paragraph 6 of the application for seeking

condonation of delay the appellant/defendant no. 1 states that he had sent one

official to keep on overseeing the suit/matter but which could not be prosecuted

properly. Neither is the name given by the appellant/defendant no. 1 of this

official nor can this be a reason for condonation of delay from 13.3.2015 to

16.12.2015 because such official if he was overseeing the suit proceedings on

behalf of the appellant/defendant no. 1, he would actually know or would be

deemed to know the Judgment and Decree dated 12.2.2015. In any case, the

appellant/defendant no. 1 can be said to have deemed knowledge of the

Judgment and Decree dated 12.2.2015, inasmuch as, he had appeared in the suit

and was proceeded ex parte way back on 25.4.2005. Therefore, the application

for condonation of delay was misconceived because knowledge was wrongly

alleged from receiving of the notices in execution proceeding in October, 2015,

inasmuch as, appellant/defendant no. 1 had appeared in the suit and was

proceeded ex parte, and therefore, is deemed to have knowledge of the

Judgment and Decree dated 12.2.2015 on 12.2.2015 itself. Also as already

stated above even the application seeking condonation of delay makes

averments against the appellant/defendant no. 1 itself because it is said that

there was an official of the appellant/defendant no. 1 to oversee the suit

proceedings. I note that appellant/defendant no.1 cannot always keep on laying

blame at the door of his counsels either for being proceeded ex parte or the

Supreme Court Special Leave Petition being dismissed for non-prosecution or

the Advocate not telling about the Judgment and Decree dated 12.2.2015. All in

all there is no ground for condonation of the delay for non-filing of the first

appeal from 13.3.2015 till 16.12.2015 in the facts and circumstances of the

present case.

4. Counsel for the appellant/defendant no.1 sought to argue on merits

that respondent no.1/plaintiff cannot be said to have proved his case against the

appellant/defendant no. 1 as the appellant/defendant no. 1 was an agent

however, I cannot agree to this argument because both in the plaint filed by the

respondent no.1/plaintiff and in the affidavit by way of evidence filed by the

plaintiff of its partner Md. Sheikh Naqi, there is pleading and deposition to the

fact of the appellant/defendant no. 1 agreeing to pay the liability respondent no.

2/defendant no. 2/Canadian buyer in case of default by such Canadian buyer.

As the appellant/defendant no. 1 was ex parte, there is no cross-examination of

Md. Sheikh Naqi and therefore the respondent no.1/plaintiff can be said to have

proved its case on joint liability of respondent no. 2/defendant no. 2/Canadian

buyer with the appellant/defendant no. 1, because appellant/defendant no.1 had

agreed to make the necessary payment for goods supplied in case of default

committed by respondent no. 2/defendant no. 2/Canadian buyer.

5. In view of the peculiar facts and circumstances of this case, I do

not see any reason to interfere with the judgment of the first appellate court

dismissing the first appeal as barred by limitation, and therefore, this Regular

Second Appeal does not raise any substantial question of law, and is

accordingly dismissed leaving the parties to bear their own costs.

OCTOBER 04, 2016                                      VALMIKI J. MEHTA, J
AK