Delhi High Court
Pradeep Kalra vs Vijay Bansal on 26 May, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:26.05.2025
+ C.R.P. 66/2025, CM APPL. 12141/2025, CM APPL.
12142/2025, CM APPL. 12143/2025 & CM APPL.
12140/2025
PRADEEP KALRA ..... Petitioner
versus
VIJAY BANSAL ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Prashant Sharma, Adv. (through VC)
For the Respondent :
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
CM APPL. 12141/2025 & CM APPL. 12142/2025 (for exemption)
1. Exemptions allowed, subject to all just exceptions.
2. The applications stand disposed of.
CM APPL. 12143/2025 (for condonation of delay)
3. For the reasons mentioned in the application, the same is
allowed and the delay of 66 days in filing the present petition is
condoned.
4. The application stands disposed of.
C.R.P. 66/2025 & CM APPL. 12140/2025 (for stay)
5. The present petition is filed challenging the order dated
08.08.2024 (hereafter 'impugned order'), passed by the learned
District Judge, in Mis. DJ No. 1262 of 2023 titled as Vijay Bansal v.
Pradeep Kalra, dismissing the application filed by the petitioner under
Order XXXVII Rule 4 read with Order IX Rule 13 of the Code of
Civil Procedure, 1908 ('CPC').
6. The brief facts of the case are as follows:
6.1. The suit was filed by the respondent under Order XXXVII of
the CPC for recovery of ₹4,93,344/- along with pendent lite and future
interest at the rate of 18% per annum. It was claimed by the
respondent/ plaintiff that the petitioner/ defendant had approached him
for purchasing iron sheets, etc. and made part payments against the
supply of the goods. It was found that a sum of ₹4,55,042/- was
outstanding against the petitioner, whereby the petitioner gave the
subject cheque dated 28.01.2019 for ₹4,50,000/- to the respondent.
The subject cheque was dishonoured and returned with the remark-
'Funds Insufficient', pursuant to which, the petitioner requested the
respondent to encash the cheque in the end of April, 2019. It was
claimed that the respondent again presented the cheque for
encashment and the same was returned with the remark-'Payment
Stopped by Drawer'. Despite repeated requests, the petitioner did not
clear the dues, which led to filing of the suit, being, CS No. 640/2019.
The plaint was supported by copies of invoices raised by the
respondent against the petitioner. The respondent had also annexed the
ledger account in respect of the petitioner.
6.2. Summons were issued to the petitioner in the suit and the
petitioner also filed an application seeking leave to defend. The last
appearance on behalf of the petitioner was recorded on 18.02.2021,
whereafter none appeared on his behalf.
6.3. Pursuant to the same, the judgment and decree dated 24.01.2023
was passed whereby the suit was decreed in favour of the respondent
and the petitioner's application for leave to defend was dismissed. In
the judgment dated 24.01.2023, the learned Trial Court took note of
the defence as sought to be raised in the application for leave to
defend. It was noted that while the petitioner had alleged that the
subject cheque had been misused and he had made all the payments
for the goods supplied by the respondent, however, the averments in
relation to misuse of cheque were vague and it was not explained as to
how the cheque came to be in the possession of the respondent. It was
also noted that the petitioner had not come forward to argue the
application for leave to defend and nothing had been placed on record
to show if the petitioner had ever made any complaint regarding
misuse of cheque.
6.4. The subject application under Order XXXVII Rule 4 of the
CPC read with Order IX Rule 13 of the CPC was thereafter filed for
setting aside the judgment and decree dated 24.01.2023, in which, the
petitioner again agitated the grounds as raised in his application
seeking leave to defend. Further arguments were taken by the
petitioner that the dispute was of a commercial nature, as provided
under the Commercial Courts Act, 2015, and should not have been
decided by the Civil Court.
6.5. The learned District Judge dismissed the application by the
impugned order. It was observed that the defence presented by the
petitioner in his application seeking leave to defend had been duly
considered and the petitioner had not shown as to what steps he took
to diligently pursue his defence in the suit. The learned District Judge
also rejected the contention that the dispute between the parties was
commercial in nature.
6.6. Aggrieved by the same, the petitioner has preferred the present
petition.
7. The learned counsel for the petitioner submitted that the learned
District Judge had passed the impugned order in an arbitrary manner,
without appreciating the facts of the case.
8. He submitted that the counsel who had been engaged by the
petitioner previously for representing him in the suit proceedings had
remained absent, despite receiving the fees. He submitted that the
petitioner was reliant on his counsel as he was residing at a distant
place and was confined to bed due to some health issues. He submitted
that the petitioner had apprised his previous counsel of the facts of the
case and was under the bona fide belief that his interests were being
taken care of in the case. He stated that the petitioner only found out
about the judgment in the suit during cross examination in the
proceedings initiated by the respondent under Negotiable Instruments
Act, 1881.
9. He submitted that the respondent had filed the suit on the basis
of false invoices and he had misused the subject cheque. He submitted
that the respondent plaintiff has filed false statement of account and
deliberately concealed the fact of total received amount from the
petitioner.
10. He submitted that the respondent had claimed that the subject
cheque had been issued in respect of alleged liability of the petitioner
against the respondent's invoices, and therefore, the dispute between
the parties was commercial in nature.
11. He submitted that the statement of account of the respondent's
firm was filed with the plaint which also makes it evident that the
matter pertains to a commercial dispute, within the meaning under
Commercial Courts Act, 2015.
12. He submitted that the petitioner has a good case on merits and a
solid defence in relation to the misutilization of subject security
cheque, false/incomplete statement of accounts and false ledger
account, etc. which merit grant of leave to defend.
13. He submitted that the grounds in the application for leave to
defend could not be properly argued before the learned District Judge
due to the absence of the petitioner's previous counsel and the
petitioner cannot be made to suffer due to the same.
ANALYSIS
14. In the present petition, the petitioner has impugned the
dismissal of his application under Order XXXVII Rule 4 of the CPC
whereby he had sought setting aside of the judgment and decree dated
24.01.2023 and prayed for an opportunity to address arguments on
application seeking leave to defend.
15. Before delving into the facts of the case, it is necessary to
succinctly discuss the law in relation to Rule 4 of Order XXXVII of
the CPC. The said provision reads as under:
"4. Power to set aside decree.--After decree the Court may, under
special circumstances, set aside the decree, and if necessary stay
or set aside execution, and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems
reasonable to the Court so to do, and on such terms as the Court
thinks fit."
16. The Hon'ble Apex Court, in the case of Rajni Kumar v. Suresh
Kumar Malhotra :(2003) 5 SCC 315,had discussed the scope of Rule
4 of Order XXXVII of the CPC. The Hon'ble Apex Court had also
discussed as to how Rule 4 of Order XXXVII of the CPCis different
from Rule 13 of Order IX of the CPC, which provides for setting aside
of ex parte judgment against defendant in suits instituted in the
ordinary manner.The relevant portion reads as under:
"8. A careful reading of Rule 4 shows that it empowers, under
special circumstances, the court which passed an ex parte decree
under Order 37 to set aside the decree and grant one or both of the
following reliefs, if it seems reasonable to the court so to do and on
such terms as the court thinks fit:
(i) to stay or set aside execution, and
(ii) to give leave to the defendant (a) to appear to the summons,
and (b) to defend the suit.
9. The expression "special circumstances" is not defined in the
Civil Procedure Code nor is it capable of any precise definition by
the court because problems of human beings are so varied and
complex. In its ordinary dictionary meaning it connotes
something exceptional in character, extraordinary, significant,
uncommon. It is an antonym of common, ordinary and general.
It is neither practicable nor advisable to enumerate such
circumstances. Non-service of summons will undoubtedly be a
special circumstance. In an application under Order 37 Rule 4,
the court has to determine the question, on the facts of each case,
as to whether circumstances pleaded are so unusual or
extraordinary as to justify putting the clock back by setting aside
the decree; to grant further relief in regard to post-decree
matters, namely, staying or setting aside the execution and also in
regard to pre-decree matters viz. to give leave to the defendant to
appear to the summons and to defend the suit.
10. In considering an application to set aside ex parte decree, it is
necessary to bear in mind the distinction between suits instituted in
the ordinary manner and suits filed under Order 37 CPC. Rule 7 of
Order 37 says that except as provided thereunder the procedure in
suits under Order 37 shall be the same as the procedure in suits
instituted in the ordinary manner.Rule 4 of Order 37 specifically
provides for setting aside decree, therefore, provisions of Rule 13
of Order 9 will not apply to a suit filed under Order 37. In a suit
filed in the ordinary manner a defendant has the right to contest
the suit as a matter of course. Nonetheless, he may be declared ex
parte if he does not appear in response to summons, or after
entering appearance before framing issues; or during or after trial.
Though addressing arguments is part of trial, one can loosely say
that a defendant who remains absent at the stage of argument, is
declared ex parte after the trial. In an application under Order 9
Rule 11, if a defendant is set ex parte and that order is set aside, he
would be entitled to participate in the proceedings from the stage
he was set ex parte. But an application under Order 9 Rule 13
could be filed on any of the grounds mentioned thereunder only
after a decree is passed ex parte against the defendant. If the court
is satisfied that (1) summons was not duly served, or (2) he was
prevented by sufficient cause from appearing when the suit was
called for hearing, it has to make an order setting aside the decree
against him on such terms as to cost or payment into court or
otherwise as it thinks fit and thereafter on the day fixed for hearing
by court, the suit would proceed as if no ex parte decree had been
passed. But in a suit under Order 37, the procedure for
appearance of the defendant is governed by provisions of Rule 3
thereof. A defendant is not entitled to defend the suit unless he
enters appearance within ten days of service of summons either
in person or by a pleader and files in court an address for service
of notices on him. In default of his entering an appearance, the
plaintiff becomes entitled to a decree for any sum not exceeding
the sum mentioned in the summons together with interest at the
rate specified, if any, up to the date of the decree together with
costs. The plaintiff will also be entitled to judgment in terms of sub-
rule (6) of Rule 3. If the defendant enters an appearance, the
plaintiff is required to serve on the defendant a summons for
judgment in the prescribed form. Within ten days from the service
of such summons for judgment, the defendant may seek leave of
the court to defend the suit, which will be granted on disclosing
such facts as may be deemed sufficient to entitle him to defend
and such leave may be granted to him either unconditionally or
on such terms as the court may deem fit. Normally the court will
not refuse leave unless the court is satisfied that facts disclosed by
the defendant do not indicate substantial defence or that defence
intended to be put up is frivolous or vexatious. Where a part of the
amount claimed by the plaintiff is admitted by the defendant to be
due from him, no leave to defend the suit can be granted unless the
admitted amount is deposited by him in court. Inasmuch as Order
37 does not speak of the procedure when leave to defend the suit is
granted, the procedure applicable to suits instituted in the ordinary
manner, will apply.
11. It is important to note here that the power under Rule 4 of
Order 37 is not confined to setting aside the ex parte decree, it
extends to staying or setting aside the execution and giving leave
to appear to the summons and to defend the suit.We may point
out that as the very purpose of Order 37 is to ensure an
expeditious hearing and disposal of the suit filed thereunder,
Rule 4 empowers the court to grant leave to the defendant to
appear to summons and defend the suit if the court considers it
reasonable so to do, on such terms as the court thinks fit in
addition to setting aside the decree. Where on an application,
more than one among the specified reliefs may be granted by the
court, all such reliefs must be claimed in one application. It is not
permissible to claim such reliefs in successive petitions as it would
be contrary to the letter and spirit of the provision. That is why
where an application under Rule 4 of Order 37 is filed to set aside
a decree either because the defendant did not appear in response
to summons and limitation expired, or having appeared, did not
apply for leave to defend the suit in the prescribed period, the court
is empowered to grant leave to the defendant to appear to the
summons and to defend the suit in the same application. It is,
therefore, not enough for the defendant to show special
circumstances which prevented him from appearing or applying
for leave to defend, he has also to show by affidavit or otherwise,
facts which would entitle him leave to defend the suit. In this
respect, Rule 4 of Order 37 is different from Rule 13 of Order 9."
(emphasis supplied)
17. From the aforesaid, it is clear that under Rule 4 of Order
XXXVII of the CPC, after the decree is passed, the Court can only set
aside the decree, or give leave to the defendant to defend the suit, if
special circumstances exist and the Court deems it reasonable to do so.
In the case of Tirlok Singh Thakur v. Madan Singh Nirala: 1999
SCC OnLine HP 41, the Hon'ble High Court of Himachal Pradesh
had observed as under:
"11. The words "special circumstances" occurring in Rule 4 of
Order 37 and the words "sufficient ground" appearing in Order 9,
Rule 13 are not synonymous and as such cannot be equated. The
legislature in its wisdom has used the words "special
circumstances" in Rule 4, of Order 37. Therefore, the gravity of
reasons is higher in the case of "special circumstances". Under
Rule 4, the defendant is obliged to explain the special
circumstances which prevented him from appearing in Court and
seek leave to defend the suit within time. In addition he has
further to show that he has good, substantial and/or meritorious
defence in the suit."
(emphasis supplied)
18. Thus, to succeed in its application under Rule 4 of Order
XXXVII of the CPC, it is imperative for the defendant to explain the
special circumstances for their non-appearance, and to also establish a
substantial case on merits which may entitle them to grant of leave to
defend.
19. While "special circumstances" have not been defined anywhere
in the CPC, numerous Courts have endeavored to elaborate upon what
constitutes as such. It has been held in a number of judgments,
including Tirlok Singh Thakur v. Madan Singh Nirala (supra) that
the threshold of "special circumstances" is higher than that of
"sufficient cause", as provided under Rule 13 of Order IX of the CPC
and Section 5 of the Limitation Act, 1963.
20. The Hon'ble High Court of Andhra Pradesh, in the case of
Karumilli Bharathi v. Prichikala Venkatachalam: 1999 SCC
OnLine AP 168, had discussed a number of judgments and observed
that the cause which leads to "special circumstances" is more strict
and is to be one which shows that the defendant had no possibility of
appearing before Court. The relevant portion of the judgment is as
under:
"6. The Courts in India have clearly distinguished the two
phrases, and they have held that 'special circumstance' found
under Order 37, Rule 4, CPC is not synonymous with the
'sufficient cause' found under Order 9, Rule 13, CPC or under
Section 5 of the Limitation Act. For instance, in the decision
reported in Mohan Lal v. Om Prakash, AIR 1989 Raj 132, the
High Court of Rajasthan, distinguished 'sufficient cause' from
'special reason'. It held that the case set up by the defendant for
setting aside the ex parte decree, that the plaintiff assured that
there would be settlement, therefore, he did not appear on the day
fixed, could constitute 'sufficient cause' in terms of Order 9, Rule
13, CPC, but not 'special reason', as envisaged under Order 37,
Rule 4, CPC. In another judgment reported in Rahini
Roy v. Jethmull Bhojraj, AIR 1969 Cal 218, the High Court of
Calcutta held that defendants in the case did not make out' special
circumstances'. The facts of that case reveal that the defendants
did not furnish security to the extent of Rs. 30,000/- to the
satisfaction of Registrar within one month, nor even after giving
two time extensions and as such ultimately an ex parte decree was
passed on 8-9-1967, when the matter appeared in pre-emptory list.
The Court held that the defendants therein did not explain their
absence and their inaction when they had equal, opportunity,
ultimately held that the defendants did not make out 'special
circumstances' for setting aside the ex parte decree. The High
Court of Jammu and Kashmir in the decision reported in Subash
Raina v. Suraj Parkash, AIR 1977 J and K 30, also had an
occasion to consider the distinction between "special
circumstances" and "sufficient cause". It held that the defendant
did not make out 'special circumstances' in his plea that he was
busy at Phillaur and was undergoing training and as such he could
not be present on the day when he was required to seek leave to
defend the suit within time, by observing as under:--
'7. Coming to the question of special circumstances as
envisaged by Rule 4 it is noticed that no special
circumstances can be said to be established from the
averments made in the application itself. There is
difference between "special circumstance" occurring in
Rule 4 and "sufficient cause" occurring in Rule 14 of
Order 9. 'Special Circumstance' is not synonymous with
'sufficient cause'. Under Rule 4 the defendant has to
explain the special circumstance which prevented him
from appearing in the Court and seek leave to defend the
suit within time.In the instant case no special
circumstance entitling the defendant to claim benefit
under Order 4 has been set up. The mere fact that the
defendant-petitioner was busy at Phillaur and was
undergoing training there, would not have prevented him
from engaging an attorney or a lawyer and instructing
him to appear on his behalf and seek leave to defend the
suit, or at any rate Phillaur being not a far off place from
Jammu, he could have boarded the train during night and
come over to Jammu on a holiday and after briefing his
counsel should have returned to that place. The defendant
willfully remained absent and in spite of service did not
either personally or through agent or through a lawyer
care to make his appearance and seek leave to defend the
suit.
8. For the foregoing reasons, I am, therefore, not inclined
to accede to the request of the defendant that the decree
be set aside against him.'
From the above judgments, I find that the High Courts in India
have attempted to distinguish the phrases "special circumstances"
found under Order 37, Rule 4 and "sufficient cause" found under
Order 9, Rule 13, CPC. I am not able to lay my hands on any
judgment, nor any such judgment has been brought to my notice, as
to the exact distinction between these two phrases. However, from
the judgments noted above, it is certain that the reasons offered to
explain the special circumstances, should be such that a person
absolutely had no possibility of appearing before the Court on a
relevant day. For instance, there was a strike and all the buses
were withdrawn and there was no other mode of transport, so as to
go from the place he resides to the place where the Court is
situated, may constitute "special circumstances". But if he were to
plead that the bus he wanted to board, he missed it and as such he
could not appear before the Court, may constitute "sufficient
cause", but not a 'special circumstance', since it is not his case
that there was no other mode of transport, enabling him to reach
the Court on the date he was required to be present in the Court.
Thus a 'special circumstance' would take with it a 'cause' or
'reasons', which prevents a person in such a way that it is almost
impossible for him to attend the Court or to perform certain acts
which he is required to do. Thus the 'reason' or 'cause' found in
"special circumstances" is more strict or more stringent than in
"sufficient cause". What would constitute 'special circumstances',
would depend upon the facts of each case. Making out of special
circumstances (for the purpose of setting aside the ex parte
decree) may constitute a 'sufficient cause', but not vice versa.
This inference I am drawing from the way 'special circumstance'
has been interpreted by the different High Courts in India.
Therefore, what has to be seen for setting aside an ex parte
decree, under Order 37, Rule 4, CPC, is whether the defendant
has made out "special circumstance" for his non-appearance on
the day when he was required to appear before the Court, either
to seek the leave to defend the suit or to comply with the
directions of the Court."
(emphasis supplied)
21. In the peculiar facts of the present case, the summons were duly
served upon the petitioner, who entered his appearance and even filed
an application seeking leave to defend. The learned District Judge, in
the impugned order, took note of the petitioner's explanation for non-
appearance and expressed doubt on the reasons so mentioned. The
relevant portion of the impugned order in this regard is as under:
"It is the defendant's case that his earlier counsel was negligent in
the matter and his last appearance was on 18.02.2021 and that
thereafter the counsel was negligent and did not appear in the
matter and also did not appear for arguments on the application
for leave to defend. I find that although the defendant has put the
blame on the earlier counsel, the defendant has not clearly stated
as to what deligence was undertaken by the defendant himself in
pursuing his defence in the suit. Although the defendant has
vaguely stated that due to certain health issues and since he was
bedridden due to accident he could not properly pursue the case,
however, no details in this regard have been given. The defendant
has also not mentioned as to whether he had taken any action
against his earlier counsel for the alleged negligence."
(emphasis supplied)
22. The learned District Judge has rightly noted that the petitioner
has merely given vague reasons of attenuating health issues and
pushed the entire blame for non-appearance on his previous counsel. It
is pertinent to note that the suit was decreed after more than 2 years of
non-appearance of the petitioner. It is unfathomable that the petitioner
was entirely reliant upon his previous counsel and did not take care to
follow up with the counsel for updates in relation to the case. Merely
engaging a counsel and paying some amount in advance does not
absolve a litigant of their duty to diligently pursue their interests in a
litigation. While the entire onus for non-appearance has been sought to
be shifted on to the previous counsel, however, admittedly, no action
was taken by the petitioner against his previous counsel either. As
noted by the learned District Judge, the contention in relation to
alleged health ailments are also vague.
23. It is pertinent to take note of the decision of the Hon'ble Apex
Court in the case of Nitin Mahadeo Jawale v. Bhaskar Mahadeo
Mutke: 2024 SCC OnLine SC 3468. In the said case, while
upholding the dismissal of an order condoning delay of four years, the
Hon'ble Apex Court had noted the growing tendency of litigants to
shift all the blame on their prior counsel. It was noted that even if it is
to be considered that the concerned lawyer was negligent, the same by
itself is not a ground to condone delay as the litigant ought to be
vigilant about the judicial proceedings. The relevant portion of the
decision is as under:
"4. It appears from the materials on record that as the defendants
failed to file their written statement in time the stage to file written
statement was closed. Thereafter permission of the Trial Court was
prayed for to file the written statement after a period of over 4½
years. The Trial Court permitted the defendants to file their written
statement. The plaintiff being dissatisfied with the same challenged
the order passed by the Trial Court permitting the defendants to
file written statement after a period of 4½ years. The High Court
allowed the petition and set aside the order passed by the trial
court.
5. We find no error not to speak of any error of law in the
impugned judgment passed by the High Court.
6. We have noticed over a period of time the growing tendency on
the part of the litigants in throwing the entire blame on the head
of the advocate. Not only this, we have come across cases where
the concerned advocate has filed an affidavit in favour of his
client(s) saying that he was unable to attend the proceedings due to
some personal reasons difficulties thereby facilitating the litigant
to get the delay condoned.
7. Even if we assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground to
condone long and inordinate delay as the litigant owes a duty to
be vigilant of his own rights and is expected to be equally vigilant
about the judicial proceedings pending in the court initiated at
his instance.
8. The litigant, therefore, should not be permitted to throw the
entire blame on the head of the advocate and thereby disown him
at any time and seek relief."
(emphasis supplied)
24. As noted above, the gravity of "sufficient cause" is lower than
that of "special circumstances". When the argument of negligence of
the previous counsel is not sufficient to constitute sufficient cause for
condonation of delay, it can certainly not constitute "special
circumstances" as required for interference under Rule 4 of Order
XXXVII of the CPC.
25. In view of the above, in the opinion of this Court, the petitioner
has abysmally failed to make out a case of special circumstances to
explain his non-appearance. No such contentions are spelt out in the
application under Rule 4 of Order XXXVII of the CPC so as to
warrant setting aside of the judgment and decree dated 24.01.2023 and
accede to the petitioner's request for grant of leave to defend. After
entering appearance and filing the application seeking leave to defend,
the petitioner failed to be vigilant and take appropriate steps to pursue
the application for close to two years.
26. In such circumstances, having found that no special
circumstances have been made out so as to warrant interference, this
Court finds no reason to interfere with the impugned order.
27. The present petition is dismissed in the aforesaid terms. Pending
application(s) also stand disposed of.
AMIT MAHAJAN, J
MAY 26, 2025
