Delhi High Court
M/S Sunlight Cafe Private Ltd & ... vs Rajnish Dhaka & Anr. on 20 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 659/2017
% 20th November, 2017
M/S SUNLIGHT CAFE PRIVATE LTD & ANR. ..... Appellants
Through: Ms. Tulika Bhatnagar,
Advocate.
versus
RAJNISH DHAKA & ANR. ..... Respondents
Through: Mr. Dhruv Madan, Mr. Mukul
Rawal and Mr. Biswajit Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the two appellants.
Appellant no. 1 is a company and it was the defendant no. 2 in the suit.
Appellant no. 2 is a Director of the appellant no. 1 company, and he
was the defendant no. 3 in the suit. The subject suit was a suit under
Order XXXVII CPC filed by the respondent no.1/plaintiff for recovery
of Rs. 35,50,000/- along with interest.
2. The impugned order shows that the suit has been decreed
against the defendant nos. 2 and 4 in the suit, namely the appellant
no.1/company and an other director Sh. Prashant Ojha, the respondent
no.2 in this appeal. This appeal therefore is essentially with respect to
passing of the judgment and decree under Order XXXVII CPC by the
impugned order dated 1.2.2017 on account of service being effected of
appellant no.1/defendant no. 2 and no appearance under Order XXXVII
Rule 2(3) having been filed by the appellant no.1/defendant no.2.
3. Learned counsel for the appellants argues that appellant
no.1/company could only have been represented in the suit by appellant
no.2 herein, and who was the defendant no. 3 in the suit, inasmuch as,
the other two directors of the appellant no.1/company/defendant no.2
were the plaintiff (respondent no.1) in the suit or the defendant no.4
(respondent no.2) in the suit, and that therefore by the impugned
judgment dated 1.2.2017 the decree could not have been passed against
the appellant no.1/company/defendant no.2 as the appellant
no.1/company/defendant no.2 could only be treated as having been
served of the summons of the Order XXXVII suit on the appellant
no.2/defendant no.3 having come to know of the filing of the subject suit
under Order XXXVII CPC against the appellant no.1/defendant no.2.
4. Admittedly in the present case the defendant nos. 2 and 4
in the suit i.e. appellant no.1/company and respondent no.2 herein
were served by way of publication on 4.1.2017. As per Article 123 of
the Limitation Act, 1963, an application to set aside an ex-parte decree
can be filed within 30 days on date of knowledge. This principle will
equally apply when a suit would be decreed under Order XXXVII
CPC when there is service by publication, with the only difference that
the appearance will have to be filed within 10 days of knowledge of
the fact that the subject suit is a suit under Order XXXVII CPC.
5. Learned counsel for the appellants states that the appellant
no.1/company can be said to have come to know of the subject suit under
Order XXXVII CPC only when the appellant no.2 (who is the Director
of appellant no.1) came to know of the factum of the suit being under
Order XXXVII CPC, and to which issue there is no dispute, but in law
once a decree if is wrongly passed by the impugned order dated 1.2.2017
as against the appellant no.1/company, then, the remedy of the appellant
no.1/company was/is to file an application under Order XXXVII Rule 4
CPC to set aside the decree and by stating the facts as to why the decree
could not have been passed against the appellant no.1/company in terms
of impugned order dated 1.2.2017.
6. Accordingly, since the appellant no.1/company claims that
it came to know of the subject suit being filed under Order XXXVII CPC
only on the date of passing of the impugned order dated 1.2.2017, and on
which date the suit itself was decreed on account of not filing of
appearance by appellant no.1/company, hence the remedy of the
appellant no. 1/company is not to file an appeal, being the present appeal,
against the impugned order dated 1.2.2017 which has decreed the suit
against the appellant no. 1/company, but the remedy of the appellant no.
1/company is to file an application under Order XXXVII Rule 4 CPC
along with an application seeking condonation of delay in accordance
with law for taking on record the delayed appearance under Order
XXXVII.
7. Accordingly, this appeal is disposed of as not maintainable
with liberty to the appellant no. 1/company to file an application on
behalf of the appellant no.1/company under Order XXXVII Rule 4 CPC
in accordance with law.
NOVEMBER 20, 2017 VALMIKI J. MEHTA, J
