Delhi High Court
S R Electro vs Delta Electronics on 22 May, 2023
Neutral Citation Number 2023:DHC:3684-DB
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22nd May, 2023
FAO (COMM) 88/2023
+ FAO (COMM) 88/2023 & CM APPL. 26999/2023
S R ELECTRO ..... Appellant
versus
DELTA ELECTRONICS ..... Respondent
Advocates who appeared in this case:
For the Appellant: Ms. Anuradha Dixit, Advocate (through V.C.)
For the Respondent: Mr. Nidish Gupta, Advocate. (through V.C.)
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
FAO (COMM) 88/2023 & CM APPL. 26999/2023 (stay)
1. Appellant impugns order dated 09.02.2023, whereby, the Trial Court
has permitted the written statement to be taken on record and permitted the
respondent to contest the suit on merits.
2. Subject suit was filed by the appellant for recovery. Though the
ordersheet of the Trial Court records that the respondent was not served in
the suit, a counsel entered appearance for the respondent on 05.07.2022.
Respondent failed to file written statement within 30 days. Subsequently,
the respondent failed to appear and was proceeded ex-parte on 27.09.2022.
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
17:51:33
Neutral Citation Number 2023:DHC:3684-DB
3. An application under Order IX Rule 7 CPC was filed by the
respondent seeking setting aside of the ex-parte order, which was allowed
on 09.12.2022, subject to costs of Rs.15,000/-. One week time was granted
to the respondent to file the written statement.
4. Order dated 09.12.2022 records that respondent had raised the
grievance that respondent had not received a copy of the plaint. Copy of the
plaint was received through Whatsapp on 22.08.2022. Thereafter on
31.08.2022, lawyers were abstaining from work and as such counsel for the
respondent could not appear and the suit was adjourned to 27.09.2022. On
27.09.2022 when the counsel for the respondent reached the Court, he was
informed that the respondent had already been proceeded ex-parte.
Pursuant to which, the application under Order IX Rule 7 CPC was filed
which got allowed on 09.12.2022.
5. On 09.12.2022, while setting aside the ex-parte order, the Trial Court
granted one week time to the respondent to file written statement.
6. When the suit was again taken up on 31.01.2023, none appeared for
the respondent and as the written statement was also not on record, the
right to file the written statement was closed and the case was adjourned to
09.02.2023.
7. On 09.02.2023, the Court noticed that written statement along with
Statement of truth and the affidavit of admission and denial of documents
was sought to be filed on that date along with an application seeking recall
of order dated 31.01.2023.
8. The application was allowed and the written statement was taken on
record subject to payment of cost of Rs.20,000/-. The cost of Rs.20,000/-
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
17:51:33
Neutral Citation Number 2023:DHC:3684-DB
has also been forwarded to the appellant. Though counsel for the appellant
submits that the same was received through an online mode, however, it is
not in dispute that the same was not offered to be returned till 15.03.2023.
9. Perusal of the application filed by the respondent on 09.02.2023
shows that the written statement was filed through the online portal of the
District Court. The application also indicates the filing number for the
online filing of 21.12.2022. Copy of the written statement was also sent to
learned counsel for the respondent which was also received on 21.12.2022
along with the cost.
10. Record shows that the respondent had filed the written statement on
21.12.2022 through the online mode and as such, the order of the Trial
Court dated 31.01.2023 closing the right of the respondent is not
sustainable.
11. Online mode is a permitted mode of filing documents and the written
statement was filed through the online mode within 12 days of the
permission granted by the Court. It may be noticed that though leave of 7
days was granted, however, online filing was done within 12 days with a
mere delay of 5 days. The Trial Court record reveals that the respondent
was not served yet the counsel entered appearance on 05.07.2022.
Thereafter copy of the plaint was received on 22.08.2022 and the
respondent was proceeded ex-parte on 27.09.2022, i.e, within one month
and 5 days of receipt of copy. Thereafter the written statement was filed
within 12 days of the permission being granted on 09.12.2022. So in effect
the respondent took one month and 17 days to file the written statement.
12. We may also notice that all these facts have already been taken into
account and discretion has been exercised by the concerned Court in taking
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
17:51:33
Neutral Citation Number 2023:DHC:3684-DB
on record the written statement of the respondent by the impugned order
dated 09.02.2023.
13. Consequently, we find no ground to interfere in the discretion
exercised by the Trial Court in taking on record the written statement filed
by the respondent.
14. In view of the above, we find no merit in the present appeal. The
appeal is consequently dismissed.
SANJEEV SACHDEVA, J
MANOJ JAIN, J
MAY, 22, 2023
st
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
17:51:33
