Delhi High Court
Neeti Aggarwal vs M/S Top Runners Impex Pvt Ltd & Ors on 11 February, 2020
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th February, 2020
+ CM (M) 1486/2019 & CM APPL. 45198/2019
NEETI AGGARWAL ..... Petitioner
Through: Mr. Anil Sharma and Mr. Gagan
Kumar, Advocates. (M:9971287776)
versus
M/S TOP RUNNERS IMPEX PVT LTD & ORS. ..... Respondents
Through: Mr. Kamal Mehta and Mr. Abhishek
Chauhan, Advs. (M:9810475712)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present petition has been filed challenging the impugned order
dated 28th August, 2019 by which the Trial Court has taken the leave to
defend on record and has condoned the delay in filing the same.
2. The Petitioner/Plaintiff (hereinafter 'Plaintiff') filed a suit seeking
recovery of a sum of approximately Rs.13 lakhs. Summons were issued in
the suit under Order XXXVII CPC. Thereafter, the Defendants entered
appearance as per the prescribed timelines. The Plaintiff then moved an
application under Order XXXVII Rule 3(4) CPC seeking issuance of
summons for judgment and on 24th November, 2018 the Court issued
summons/notice in the said application.
3. The Plaintiff thereafter moved an application for pronouncement of
judgment under Order XXXVII Rule 2(3) CPC. Along with the said
application, various tracking reports, courier receipts etc. were annexed to
show how the summons for judgments were, in fact, served upon the
Defendants. The Defendants, thereafter, moved an application under Order
XXXVII Rule 3(5) CPC seeking leave to defend. The Plaintiff has taken the
stand that the leave to defend is beyond the time period fixed under Order
XXXVII CPC. By way of abundant caution, the Defendants moved an
application seeking condonation of delay without prejudice to its rights. The
Trial Court considered the two applications and vide the impugned order,
condoned the delay in filing the leave to defend application. The leave to
defend application is now pending for disposal before the Trial Court.
4. Ld. counsel for the Plaintiff submits that there are no reasons given to
justify condonation of delay. The Defendants were served on 7th January
2019, 9th January 2019 and 11th January, 2019. Thus, the date of service
being taken by the trial court as 29th January, 2019 would be completely
incorrect. He relies upon the annexures of the application under Order 37
Rule 2(3), which were filed by the Plaintiff in support of the fact that the
delivery of the summons for judgment is clearly demonstrated from the
courier receipts and tracking report. He further submits that no reasonable
explanation has been given for condonation of delay of 20 days in filing the
leave to defend.
5. Ld. counsel for the Defendants, on the other hand, submits that the
application and the annexures thereof filed by the Plaintiff do not show as to
who had taken the delivery of the documents, which were purportedly sent
by courier. In any event, the leave to defend was filed on 7 th February, 2019.
The Defendants' counsel was served with the summons for judgment only
on 29th January, 2019 by the Plaintiff. Accordingly, the leave to defend was
within time. In any event, he submits that the delay, if any, is condonable
for the reasons stated in the application. He relies upon the following
judgments:
(i) Commissioner of Income Tax v Eqbal Singh Sindhana 2008 (304) ITR
(ii) Rajesh Bansal v Ansal Housing Construction Limited AIR 2002 Del
(iii) Goyal MG Gases Ltd. v Premium International Finance Ltd. 2007
(138) DLT 259
6. The Court has perused the orders of the trial court. Till the stage of
filing of summons for judgment, there is no dispute as to the facts. However,
coming to the leave to defend, the same has also admittedly been filed on 7th
February, 2019. The earliest date, which according to the Plaintiff, was the
date when the Defendants were served was 7th January, 2019 and the
Defendant had 10 days for filing the leave to defend, which expired on 18th
January, 2019. There was delay of approximately 20 days in filing the leave
to defend, even going by the earliest date when the courier is stated to have
been received. Thus, it cannot be stated that the Defendant had unduly
delayed the filing of the leave to defend application. The Defendant has also
stated adequate reasons in the application for condonation of delay,
inasmuch as it is the Defendant's case that service actually took place on
29th January, 2019. The tracking reports do not show as to exactly who was
served with the application. The application for condonation of delay has
been filed without prejudice to the rights of the Defendant. The sum, for
which the recovery is sought, is quite substantial and accordingly, owing to
the dispute as to the date of service and considering that at best the delay is
of 20 days, this Court is inclined to condone the delay in filing the leave to
defend, subject to costs of Rs.20,000/-, which shall be paid to the Plaintiff
on the next date before the Trial Court.
7. The petition along with the pending applications is disposed of in the
above terms.
PRATHIBA M. SINGH
JUDGE
FEBRUARY 11, 2020/dk
