Anand Shekhar Singh Vs. M/S Apco Constrution Pvt Ltd and Anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/29134
CourtDelhi High Court
Decided OnDec-24-2014
JudgeManmohan Singh
Appellant Anand Shekhar Singh
RespondentM/S Apco Constrution Pvt Ltd and Anr
Excerpt:
* in the high court of delhi at new delhi order delivered on:24. h december, 2014 % + cs(os) 3381/2012 anand shekhar singh ..... plaintiff through mr.manoj singh, adv. with mr.manu dev sharma, adv. versus m/s apco construction pvt ltd & anr ..... defendants through mr.vishwa bhushan arya, adv. coram: hon'ble mr.justice manmohan singh manmohan singh, j.1. this is a suit for recovery filed by the plaintiff against the defendants under order xxxvii cpc for a sum of rs.22,00,000/alongwith pendent-lite interest.2. brief facts of the case as stated in the plaint are that the defendant no.1, through defendants no.2 to 4 who are the managing director and directors of defendant no.1, approached the plaintiff in november, 2008 and made a request for a financial loan of rs.22,00,000/- for expansion of business to which the plaintiff agreed. the said loan was advanced to defendant no.1 through defendants no.2 to 4 for a period of 24 months w.e.f. november, 2008 by means of cheques which were duly credited in the account bearing no.50431011000713 maintained by defendant no.1 with oriental bank of commerce, nirankari colony, delhi- 110009 during the month of december, 2008 and january, 2009. details thereof are: (i) rs.10,00,000/- through cheque no.327314 dated 30th december, 2008 drawn on syndicate bank, dhaula kaun, new delhi (ii) rs.12,00,000/- through cheque no.327315 dated 1st december, 2008 drawn on syndicate bank, dhaula kaun, new delhi 3. it is averred by the plaintiff that at the time of entering the loan agreement with the plaintiff, defendant no.1 through defendant no.2 had duly acknowledged the receipt of the said cheques which were duly credited to the account of defendant no.1 and thereafter defendants agreeing to the rate of interest upon the loan amount, duly executed a promissory note dated 28th december, 2008 in presence of witnesses. defendant no.1 through defendant no.2 issued post dated cheque bearing no.844211 dated 5th december, 2010 for rs.22,00,000/- drawn on oriental bank of commerce, south extension, new delhi-110049 as security for repayment of loan amount obtained from defendant no.1.4. it is stated that after the expiry of the stipulated period, plaintiff contacted the defendants on several occasions seeking repayment but defendants expressed their financial inability and requested plaintiff to present said cheque on 9th december, 2010.5. plaintiff presented the said cheque for encashment on 9th december, 2010 but the same was returned dishonoured with endorsement "required information not legible" vide a return memo dated 9th december, 2010.6. when plaintiff approached the defendants in this regard, the defendants kept avoiding the plaintiff on one pretext or the other. a demand notice dated 7th january, 2011 was sent to the defendants to make payment within 15 days for receipt of the demand notice. the same was sent to defendant no.1's registered address and residential addresses of defendants no.2 to 4. however, defendants avoided to receive the same and the same was received back with remark "no such person live on the given address", though the same was served upon defendant no.1.7. on 26th february, 2011, the plaintiff filed a criminal complaint under section 138 read with section 141 of the negotiable instrument act read with section 420/34 ipc before court of metropolitan magistrate, saket district court, new delhi, vide complaint no.441/1/2011 which was pending at the time of filing the present suit.8. this suit was listed before court for the first time on 5th december, 2012 when the plaintiff conceded that he did not wish to proceed against defendants no.2 to 4, their liability not being joint and several with defendant no.1 which has a separate juristic identity. accordingly, summons to enter appearance in the matter were issued to defendant no.1 company. the plaintiff subsequently filed an amended memo of parties on.9. vide order dated 12th december, 2013, defendant's applications for entering appearance as well as for condonation of delay in re-filing the appearance after removal of defects were allowed. subsequently on an application of the plaintiff in this regard, summons for judgment were issued to the defendant vide order dated 8th january, 2014.10. on 1st august, 2014, counsel for the defendant submitted before court that he had filed leave to defend in the matter vide diary no.123299/2014, however, the same was not on record.11. subsequently defendant filed i.a. no.19152/2014 under order xxxvii rule 3(5) cpc for leave to defendant and 19153/2014/2014 under order xxxvii rule 3(7) i.a. no.cpc for condonation of delay in filing the application for leave to defendant.12. there is about 144 days delay in filing the leave to defend. it has been stated by the defendant that defendant received the summons for judgment on or about 25th february, 2014 and immediately informed his counsel. however, there had been two deaths in the immediate family of the counsel. first the counsel's elder brother's wife had expired and within a short span of 29 days, father of the counsel expired. subsequently counsel got sick with frozen shoulder and had not been attending to the office work regularly. even though the counsel had been appearing in the courts occasionally but could not effectively participate in the court proceedings as he was undergoing physiotherapy exercises daily in the dispensary at the premises of this court.13. it is averred that during his sickness, the counsel got the court file inspected through his assistant colleague who misplaced the file and wrongly tagged the same with another file in the office of the counsel. counsel could only locate the file on 27th july, 2014, sunday and the application for leave to defendant was filed thereafter. it has been stated that there is a bonafide mistake on part of the counsel for the defendant for which there is no fault of the defendant who should suffer for the fault of the counsel and so the delay in filing the application for leave to defend be condoned.14. having heard, the learned counsel for both parties, it is necessary to refer the provisions of sub-rule 5 of order 37 rule 3 which reads as under:"5. the defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just: provided that leave to defend shall not be refused unless the court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."15. no doubt under sub-rule 7, the court is empowered to excuse the delay if sufficient cause is shown.16. in the present case, there is a delay of 144 days in application for leave to defend. under sub rule 5 and rule 3 of order 37, the application for leave to defend ought to have been filed within 10 days. in the present case, defendant no.1 through defendant no.2 issued post dated cheque dated 5th october, 2010 for the sum of rs.22,00,000/- as security for payment of loan. but after the expiry of stipulated period, the same when presented for encashment, were returned dishonoured with endorsement "required information not legible". when the notice was issued, it was returned back. the grounds taken in the application are that there had been two deaths in the family of counsel and later on he got sick with frozen shoulder. no doubt for certain period of time court can excuse the delay but in the present case there is delay of 144 days. in a suit of summary nature, such a long delay is inexcusable and cannot be condoned. as the defendants have failed to assign reasons of long delay and no sufficient cause is shown, the application for condonation of delay is rejected. consequently, the defendants are not entitled for leave to defend in the eyes of law. the suit of the plaintiff is decreed as per the prayer with costs.17. decree be drawn accordingly. (manmohan singh) judge december24 2014
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI Order delivered on:

24. h December, 2014 % + CS(OS) 3381/2012 ANAND SHEKHAR SINGH ..... Plaintiff Through Mr.Manoj Singh, Adv. with Mr.Manu Dev Sharma, Adv. versus M/S APCO CONSTRUCTION PVT LTD & ANR ..... Defendants Through Mr.Vishwa Bhushan Arya, Adv. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.

1. This is a suit for recovery filed by the plaintiff against the defendants under Order XXXVII CPC for a sum of Rs.22,00,000/alongwith pendent-lite interest.

2. Brief facts of the case as stated in the plaint are that the defendant No.1, through defendants No.2 to 4 who are the Managing Director and Directors of defendant No.1, approached the plaintiff in November, 2008 and made a request for a financial loan of Rs.22,00,000/- for expansion of business to which the plaintiff agreed. The said loan was advanced to defendant No.1 through defendants No.2 to 4 for a period of 24 months w.e.f. November, 2008 by means of Cheques which were duly credited in the account bearing No.50431011000713 maintained by defendant No.1 with Oriental Bank of Commerce, Nirankari Colony, Delhi- 110009 during the month of December, 2008 and January, 2009. Details thereof are: (i) Rs.10,00,000/- through Cheque No.327314 dated 30th December, 2008 drawn on Syndicate Bank, Dhaula Kaun, New Delhi (ii) Rs.12,00,000/- through Cheque No.327315 dated 1st December, 2008 drawn on Syndicate Bank, Dhaula Kaun, New Delhi 3. It is averred by the plaintiff that at the time of entering the loan agreement with the plaintiff, defendant No.1 through defendant No.2 had duly acknowledged the receipt of the said cheques which were duly credited to the account of defendant No.1 and thereafter defendants agreeing to the rate of interest upon the loan amount, duly executed a Promissory Note dated 28th December, 2008 in presence of witnesses. Defendant No.1 through defendant No.2 issued post dated cheque bearing No.844211 dated 5th December, 2010 for Rs.22,00,000/- drawn on Oriental Bank of Commerce, South Extension, New Delhi-110049 as security for repayment of loan amount obtained from defendant No.1.

4. It is stated that after the expiry of the stipulated period, plaintiff contacted the defendants on several occasions seeking repayment but defendants expressed their financial inability and requested plaintiff to present said cheque on 9th December, 2010.

5. Plaintiff presented the said cheque for encashment on 9th December, 2010 but the same was returned dishonoured with endorsement "Required Information Not Legible" vide a return memo dated 9th December, 2010.

6. When plaintiff approached the defendants in this regard, the defendants kept avoiding the plaintiff on one pretext or the other. A demand notice dated 7th January, 2011 was sent to the defendants to make payment within 15 days for receipt of the demand notice. The same was sent to defendant No.1's registered address and residential addresses of defendants No.2 to 4. However, defendants avoided to receive the same and the same was received back with remark "no such person live on the given address", though the same was served upon defendant No.1.

7. On 26th February, 2011, the plaintiff filed a criminal complaint under Section 138 read with Section 141 of the Negotiable Instrument Act read with Section 420/34 IPC before Court of Metropolitan Magistrate, Saket District Court, New Delhi, vide Complaint No.441/1/2011 which was pending at the time of filing the present suit.

8. This suit was listed before Court for the first time on 5th December, 2012 when the plaintiff conceded that he did not wish to proceed against defendants No.2 to 4, their liability not being joint and several with defendant No.1 which has a separate juristic identity. Accordingly, summons to enter appearance in the matter were issued to defendant No.1 company. The plaintiff subsequently filed an amended memo of parties on.

9. Vide order dated 12th December, 2013, defendant's applications for entering appearance as well as for condonation of delay in re-filing the appearance after removal of defects were allowed. Subsequently on an application of the plaintiff in this regard, summons for judgment were issued to the defendant vide order dated 8th January, 2014.

10. On 1st August, 2014, counsel for the defendant submitted before Court that he had filed leave to defend in the matter vide Diary No.123299/2014, however, the same was not on record.

11. Subsequently defendant filed I.A. No.19152/2014 under Order XXXVII Rule 3(5) CPC for leave to defendant and 19153/2014/2014 under Order XXXVII Rule 3(7) I.A. No.CPC for condonation of delay in filing the application for leave to defendant.

12. There is about 144 days delay in filing the leave to defend. It has been stated by the defendant that defendant received the summons for judgment on or about 25th February, 2014 and immediately informed his counsel. However, there had been two deaths in the immediate family of the counsel. First the counsel's elder brother's wife had expired and within a short span of 29 days, father of the counsel expired. Subsequently counsel got sick with frozen shoulder and had not been attending to the office work regularly. Even though the counsel had been appearing in the courts occasionally but could not effectively participate in the court proceedings as he was undergoing physiotherapy exercises daily in the dispensary at the premises of this Court.

13. It is averred that during his sickness, the counsel got the court file inspected through his assistant colleague who misplaced the file and wrongly tagged the same with another file in the office of the counsel. Counsel could only locate the file on 27th July, 2014, Sunday and the application for leave to defendant was filed thereafter. It has been stated that there is a bonafide mistake on part of the counsel for the defendant for which there is no fault of the defendant who should suffer for the fault of the counsel and so the delay in filing the application for leave to defend be condoned.

14. Having heard, the learned counsel for both parties, it is necessary to refer the provisions of sub-rule 5 of Order 37 Rule 3 which reads as under:

"5. The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court."

15. No doubt under Sub-Rule 7, the Court is empowered to excuse the delay if sufficient cause is shown.

16. In the present case, there is a delay of 144 days in application for leave to defend. Under Sub Rule 5 and Rule 3 of Order 37, the application for leave to defend ought to have been filed within 10 days. In the present case, defendant No.1 through defendant No.2 issued post dated cheque dated 5th October, 2010 for the sum of Rs.22,00,000/- as security for payment of loan. But after the expiry of stipulated period, the same when presented for encashment, were returned dishonoured with endorsement "Required Information Not Legible". When the notice was issued, it was returned back. The grounds taken in the application are that there had been two deaths in the family of counsel and later on he got sick with frozen shoulder. No doubt for certain period of time Court can excuse the delay but in the present case there is delay of 144 days. In a suit of summary nature, such a long delay is inexcusable and cannot be condoned. As the defendants have failed to assign reasons of long delay and no sufficient cause is shown, the application for condonation of delay is rejected. Consequently, the defendants are not entitled for leave to defend in the eyes of law. The suit of the plaintiff is decreed as per the prayer with costs.

17. Decree be drawn accordingly. (MANMOHAN SINGH) JUDGE DECEMBER24 2014