Delhi High Court
M/S Fairgrowth Sales Pvt. Ltd vs M/S Real Innerspring ... on 23 May, 2023
Neutral Citation Number: 2023: DHC: 3683 -DB
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: May 23, 2023
4
+ RFA(COMM) 46/2023, CM APPL. 26910/2020
M/S FAIRGROWTH SALES PVT. LTD. ..... Appellant
Through: Mr. Pradeep Chhindra, Mr. Rajan
Chawla, Ms. Pooja Joshi and
Mr.Sumit Nagpal, Advocates.
versus
M/S REAL INNERSPRING TECHNOLOGIES
PVT. LTD. ..... Respondent
Through: Mr. Gautam Dutta, Advocate.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO (Oral)
1. This appeal has been filed challenging judgment and decree dated
March 11, 2020, in CS (COMM) No. 214/2019 passed by learned District
Judge (Commercial Court), East District, Karkardooma Court, whereby
learned District Judge has decreed the suit in favour of the respondent herein
and against the appellant for a sum of Rs. 46,23,040 /- along with interest at
the rate of 7% per annum from the date of filing of the suit till the realization
of the decretal amount.
2. When the appeal was listed on October 21, 2020, this Court, subject to
the Appellant depositing 50% of the decretal amount with the Registrar
General of this Court, had stayed the operation of the judgment and decree
till the next date of hearing. The said order had been confirmed and directed
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
Neutral Citation Number: 2023: DHC: 3683 -DB
to be continued during the pendency of the appeal, on May 20, 2022.
3. As per the Office noting dated November 09, 2020, following has
been stated by the Registry with regard to the deposit made:-
"May kindly see office note of Civil-Ill Branch dated
06.11.2020 (received by Cash- II Branch on 09.11.2020)
whereby the Civil-Ill Branch has forwarded the case file
along with a Demand Draft No. 956886 dated 27.10.2020
for Rs.23,11,520/- for further necessary action in terms of
order dated 21.10.2020.
Reference order dated 21.10.2020 and office order
No.750/E-V/Estt.-II/DHC dated 28.11.2015, a Demand
Draft No. 956886 dated 27.10.2020 for Rs.23,11,520/-
(Rupees Twenty Three Lakh Eleven Thousand Five
Hundred Twenty only) drawn on Canara Bank, Khar,
Mumbai - 400052 may be sent to UCO Bank, Delhi High
Court Branch for obtaining FDR for a period of one year in
the name of the Registrar General, High Court of Delhi in
automatic renewal mode.
DFA is added accordingly, if approved, may issue
please."
4. It is submitted by learned counsel for the appellant that let the learned
District Judge consider the appellant's leave to defend, if permitted to be
filed, and pending the decision, amount deposited, be retained in this Court.
The submission made by counsel for the appellant is that due to the delay in
filing the appearance by 34 days, the learned District Judge has decreed the
suit. According to him, the reasons for not filing the appearance on time have
been spelt out in paragraph 3 of the application seeking condonation of
delay, while filing the appearance before the learned District Judge, which
we reproduce as under:
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
Neutral Citation Number: 2023: DHC: 3683 -DB
"3. That the summons in the present Suit were served upon
the Defendant on 30.10.2018, however the Defendant could
not entered appearance either by itself or through its
Counsel within the said stipulated ten days from the date of
service on summons on it due to following reasons:
(i) That Sh. Tejinder Pal Singh Madan, the director of the
Defendant Company on 28.10.2018 suffered Slip Disc and
was diagnosed with acute Lumbosacral strain with Slip Disc
L4-L5, L5-S1 with severe radiculopathy and has been
advised complete bed rest by the doctor for one month for
further recovery. The medical certificate issued by Dr.
Umesh Shetty is annexed herewith and marked as
ANNEXURE A-1.
(ii)That since the said Sh. Tejinder Pal Singh Madan,
suffered from Slip Disc, he had stopped attending his office
from 28.10.2018.
(iii)That on 30.10.2018 one of the office staff of Sh. Tejinder
Pal Singh received the said summons in the aforesaid suit on
behalf of Sh. Tejinder Pal Singh and kept the same m his
possession.
(iv) That since the said director of Defendant Sh. Tejinder
Pal Singh was not con1ing to his office the said staff who
received the said summons also forgot to discuss about the
same with the said director.
(v) That after recuperating though partially from the said
illness Sh. Tejinder Pal Singh could only resume his office
on 26.11.2018. On resuming the said director of the
Defendant asked his office staff about any correspondence
which he received during his absence and other important
information, the said office staff then showed the said
summons along with the copy of the plaint to him.
(vi) That on enquiry from his said staff as to why he couldn't
inform him about the receiving of the same summons, the
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
Neutral Citation Number: 2023: DHC: 3683 -DB
said staff felt sorry and said that he thought he would inform
to the said director within a day or two of receiving the
same, however he forgets thereafter.
(vii) That Sh. Tejinder Pal Singh to know about the nature of
the suit and consequences of the said summons thereafter
contacted his lawyer based in New Delhi, who asked Sh.
Tejinder Pal Singh to send the copy of the said summons and
copy of the plaint to his office.
(viii) That the counsel for the defendant received the said
summons along with the copy of the plaint in his office on
30.11.2018. The office of the Counsel was closed on
01.12.2018 and 02.12.2018 and therefore the said Counsel
had the opportunity to go through the said summons and
plaint only on 03.12.2018.
(ix) That after perusal of the same the said Counsel for the
Defendant apprised his Client on 04.12.2018 about the
nature of the suit and the procedure to be followed in the
same and the period of ten days to enter appearance has
already been over.
(x) That counsel for the Defendant then suggested his Client
Sh. Tejinder Pal Singh that since it is a bonafide mistake.
therefore the present application has to be moved along with
the address for rece1v1ng of notice / summons for further
proceedings.
(xi) The Counsel for the Defendant then got the present
application ready by 08.12.2018 and sent the same to Sh.
Tejinder Pal Singh for signing and to furnish other relevant
documents.
(xii) That the Counsel for the Defendant received the present
application duly signed along with duly attested
vakalatnama on 13.12.2018 in his office from Sh. Tejinder
Pal Singh who is based in Mumbai."
5. Today before us, the learned counsel for the appellant has drawn our
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
Neutral Citation Number: 2023: DHC: 3683 -DB
attention to the certificate issued by the Doctor, whereby the Doctor has
advised the Director of the appellant company minimal physical exertion and
physiotherapy for a period of one month. He additionally states, the
summons were received by an office boy on October 30, 2018, which was
brought to the notice of the Director Sh. Tejinder Pal Singh only on
November 26, 2018, and immediately thereafter, along with an application
for condonation of delay the appearance was filed.
6. Though, learned counsel for the respondent would contest the grounds
urged by the counsel for the appellant before the learned District Judge and
even before us seeking condonation of delay in filing appearance, when it
was put to him whether he would be agreeable, if this Court permit the
appellant to file the leave to defend the suit to which a reply can be filed by
the respondent herein for a decision by the learned District Judge, on the
same by retaining the amount which has been deposited by the appellant in
this Court in terms of order dated October 21, 2020, he on instructions is
agreeable to the same.
7. If that be so, we set aside the Judgment/decree dated March 11, 2020,
of the learned District Judge and remand the matter back to the learned
District Judge (Commercial Court), East District, Karkardooma Court,
subject to the appellant filing leave to defend within two weeks from today
and also granting two weeks to the respondent herein to file reply to the
leave to defend, which shall be considered and decided by the learned
District Judge in accordance with law.
8. Accordingly, we fix the date of hearing before the learned District
Judge as July 04, 2023.
9. The Appeal is disposed of. Pending application, if any, also stands
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
Neutral Citation Number: 2023: DHC: 3683 -DB
disposed of.
10. The amount deposited in this Court in terms of order passed by this
Court on October 21, 2020, shall continue to be retained in this Court and
shall be subject to the further orders to be passed by learned District Judge in
CS (COMM) No. 214/2019.
11. Counsel for the parties are given liberty to place this order on the
Board of learned District Judge by way of an affidavit.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J.
MAY 23, 2023/R
Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:29.05.2023
15:42:41
