Delhi High Court
Lakshmi Narsimha Finbiz Ltd vs Gopal Sapra & Ors on 21 September, 2017
1
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 603/2016
LAKSHMI NARSIMHA FINBIZ LTD ..... Plaintiff
Through: Mr. Saurabh Duggal, advocate with
Mr. Sukreet Khandelwal, Advocate.
versus
GOPAL SAPRA & ORS ..... Defendants
Through: Mr. Gurdeep Singh Bhatia, Advocate.
% Date of Decision: 21st September, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
I.As. 12850-12851/2015 in CS(COMM) 603/2016
Present applications are procedural applications for entering
appearance on behalf of the defendants. The same are allowed.
I.As. 1755-1756/2017 in CS(COMM) 603/2016
1. I.A. 1756/2017 has been filed on behalf of defendants under Order
37 Rule 3(5) CPC for condonation of 418 days in re-filing the leave to
defend application.
2. In the application, it has been averred that the defendants were
served with the prescribed summons under Order 37 CPC on 05 th and 07th
November, 2015. The leave to defend was filed on 16 th November, 2015
and subsequently re-filed on 04th December, 2015.
3. However, as there were still certain objections, the leave to defend
application was collected by Mr. Pawan Kumar, the clerk of the counsel for
defendants in the third week of December, 2015.
4. It is averred in the application that Mr. Pawan Kumar the clerk of the
defendants' counsel met with an accident in the month of December, 2015
and could not attend the Court till August, 2016.
5. It is also averred that Mr. Pawan Kumar sent the file to another clerk
Mr. Mohd. Yasin in the month of August, 2016.
6. However, it is averred that Mr. Mohd. Yasin could not re-file the
leave to defend application as he fell ill on account of Tuberculosis and
subsequently upon his wife expiring on December, 2016, he resigned as a
clerk.
7. It is further averred in the application that the counsel for defendants
was under the impression that the leave to defend was lying in the judicial
file and it was only on 21st December, 2016 when the Court informed the
counsel for defendants that the leave to defend was not traceable, that the
counsel became aware that the leave to defend had not been filed by his
clerk.
8. Mr. Gurdeep Singh Bhatia, learned counsel for defendants states that
the delay in re-filing the leave to defend application was on account of the
circumstances beyond the control of the defendants and they should not
suffer on account of any mistake or negligence on the part of their counsel.
9. Per contra, learned counsel for plaintiff states that no documents
have been annexed in support of any of the alibis offered in the present
application. He states that the applications are normally put in defect only
when there are serious shortcomings and if the defendants have not
removed the said defects within the stipulated period, then this Court
should not condone the delay.
10. Having heard learned counsel for parties, this Court finds that no
documents or affidavits have been filed in support of the earlier clerk's
accident as well as the illness of the subsequent clerk and the death of his
wife.
11. The present application is not even supported by an affidavit of
counsel for the defendants.
12. The facts as disclosed in the application show sheer negligence on
the part of the defendants and their counsel in pursuing/prosecuting the
present case.
13. It is only on account of the conduct of the defendants that the
summary procedure prescribed under Order 37 CPC is 'standing on its
head' in the present case.
14. Consequently, present application is dismissed.
CS(COMM) 603/2016
Since the leave to defend has not been filed within the stipulated
period, I.A. 1755/2017 being the leave to defend application is dismissed
and the present suit is decreed in accordance with the Order 37 Rule 3(6)
CPC. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J
SEPTEMBER 21, 2017
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