| SooperKanoon Citation | sooperkanoon.com/693261 |
| Subject | Civil |
| Court | Delhi High Court |
| Decided On | Mar-07-2008 |
| Case Number | IA No. 14907/07 in CS (OS) No. 1108/07 |
| Judge | Badar Durrez Ahmed, J. |
| Reported in | 2008(102)DRJ758 |
| Acts | Code of Civil Procedure (CPC) - Order 39, Rule 10 |
| Appellant | Mr. Vijendra Kishan Gupta and anr. |
| Respondent | Yusuf Engineering Co. Pvt. Ltd. and ors. |
| Appellant Advocate | Amit Sibal; Kamal Sawhney; Arijeet Ganguly an; Harjyot Singh Bhalla, Advs |
| Respondent Advocate | Rajiv Sahai Endlaw, Sr. Adv. and; Akhil Anand, Adv. for Respondent Nos. 1 and 2 |
| Cases Referred | and Mrs Purnim Dhawan and Anr. v. Agmoz Online Pvt. Ltd.
|
Excerpt:
civil procedureplaintiff sought striking off the defence of the defendant on account of non-compliance of earlier order - subsisting lease of defendant has been terminated--defendant only liable to pay rent and hire charge monthly basis--defendant seeks some more time to comply with the previous order of payment--court directed to defendant to make payment within one week, otherwise their defence shall stand struck off without any further orders of the court. - - 1. this is an application filed on behalf of the plaintiffs for striking off the defense of the defendants on account of their failure to make deposits as per the orders passed by this court on 17.07.2007 and 09.10.2007. the plaintiffs/applicants have been able to show that the orders dated 17.07.2007 and 09.10.2007 were not complied with by the defendants. 1 failed to do so. in good faith, on 26.11.2007, the plaintiffs presented the cheques once again. union of india 2001 iii ad (delhi) 669 to show that circumstances in the present case clearly call for an order striking off the defense of the defendants in view of the fact that they have repeatedly disobeyed the orders of this court passed under order 39 rule 10 cpc for making payments.badar durrez ahmed, j.1. this is an application filed on behalf of the plaintiffs for striking off the defense of the defendants on account of their failure to make deposits as per the orders passed by this court on 17.07.2007 and 09.10.2007. the plaintiffs/applicants have been able to show that the orders dated 17.07.2007 and 09.10.2007 were not complied with by the defendants. by the order dated 17.07.2007 the defendants were directed to pay the amounts represented by the rent and hire charges, which were outstanding till then, within three weeks. the defendant no. 1 failed to do so. on 09.10.2007 this court granted a last opportunity to clear the arrears within 15 days with a further direction that the defendants would also continue to pay the said amounts without prejudice to the rights and contentions of the parties. according to the defendant no. 1 the lease is subsisting whereas according to the plaintiffs the lease has been terminated. the defendant no. 1 has taken the stand that the lease subsists and they are only liable to pay the rent and hire charges.2. despite the last opportunity granted on 09.10.2007, the defendant no. 1 did not make the payment of the arrears within the stipulated 15 days. on 26.10.2007, two letters were received from the defendants along with cheques towards the arrears for the period april to october, 2007. on presentation, the said cheques bounced and were returned to the plaintiff by its bankers with the remarks 'funds insufficient' on 02.11.2007. because of this, the plaintiffs were constrained to move a contempt petition on 23.11.2007 which is pending. on 23.11.2007 itself the plaintiffs received a letter dated 20.11.2007 requesting them to present the earlier cheques again. in good faith, on 26.11.2007, the plaintiffs presented the cheques once again. however, the cheques bounced this time also. on 20.12.2007 the defendants handed over a pay order before this court for the period april to october, 2007. that payment was, however, realized. insofar as the payment for november, 2007 is concerned, the same was also received on time. the payment for the month of december was made by way of a cheque on 08.01.2008 and that, too, bounced on 10.01.2008. the said cheque was substituted by a new pay order dated 04.02.2008 which was realized. the payment for the month of january, 2008 was also made on or about 22.01.2008. nothing was paid for the months of february 2008 and march 2008.3. the learned counsel for the plaintiffs placed reliance on a decision of the division bench of this court in the case of v.p. puri and ors. v. union of india 2001 iii ad (delhi) 669 to show that circumstances in the present case clearly call for an order striking off the defense of the defendants in view of the fact that they have repeatedly disobeyed the orders of this court passed under order 39 rule 10 cpc for making payments. the learned counsel also placed reliance on erum travels v. kanwar rani : 69(1997)dlt567 and mrs purnim dhawan and anr. v. agmoz online pvt. ltd. : 2003(66)drj218 .4. the learned counsel for the defendants submitted that there was some difficulty which had been faced by the defendant no.1 as a result of which the payments were not made regularly. he submits that now the difficult period is over and the defendant no.1 would be able to honour all of its commitments towards monthly payments. he submitted that one opportunity be granted to the defendants to comply with the orders on a month to month basis.5. considering the arguments advanced by the learned counsel for the parties, it is clear that the proposition that this court has powers to strike off the defense of the defendants on account of non-compliance of orders passed under order 39 rule 10 cpc cannot be disputed. in the present case, i find that the conduct of the defendants has not inspired much confidence. they have not complied with the orders and have repeatedly issued cheques which have bounced. however, as a last and final opportunity, i allow the defendants to make payment of the arrears for the months of february and march, 2008 within one week from today, if not already made. insofar as the future payments are concerned, they shall be made by making deposits in this court by pay orders in favor of the registrar by the 7th day of each month. the moment the payments are made by the defendants, the plaintiffs shall be entitled to withdraw the same on a month to month basis. it is made clear that if there is a default in either making the payment of arrears within one week or the monthly payments by the defendants, their defense shall stand struck off without any further orders of this court. it is reiterated that the payments that would be made by the defendants and which would be received by the plaintiffs, would be without prejudice to the rights and contentions of the parties.this application stands disposed of.
Judgment:Badar Durrez Ahmed, J.
1. This is an application filed on behalf of the plaintiffs for striking off the defense of the defendants on account of their failure to make deposits as per the orders passed by this Court on 17.07.2007 and 09.10.2007. The plaintiffs/applicants have been able to show that the orders dated 17.07.2007 and 09.10.2007 were not complied with by the defendants. By the order dated 17.07.2007 the defendants were directed to pay the amounts represented by the rent and hire charges, which were outstanding till then, within three weeks. The defendant No. 1 failed to do so. On 09.10.2007 this Court granted a last opportunity to clear the arrears within 15 days with a further direction that the defendants would also continue to pay the said amounts without prejudice to the rights and contentions of the parties. According to the defendant No. 1 the lease is subsisting whereas according to the plaintiffs the lease has been terminated. The defendant No. 1 has taken the stand that the lease subsists and they are only liable to pay the rent and hire charges.
2. Despite the last opportunity granted on 09.10.2007, the defendant No. 1 did not make the payment of the arrears within the stipulated 15 days. On 26.10.2007, two letters were received from the defendants along with cheques towards the arrears for the period April to October, 2007. On presentation, the said cheques bounced and were returned to the plaintiff by its bankers with the remarks 'funds insufficient' on 02.11.2007. Because of this, the plaintiffs were constrained to move a contempt petition on 23.11.2007 which is pending. On 23.11.2007 itself the plaintiffs received a letter dated 20.11.2007 requesting them to present the earlier cheques again. In good faith, on 26.11.2007, the plaintiffs presented the cheques once again. However, the cheques bounced this time also. On 20.12.2007 the defendants handed over a pay order before this Court for the period April to October, 2007. That payment was, however, realized. Insofar as the payment for November, 2007 is concerned, the same was also received on time. The payment for the month of December was made by way of a cheque on 08.01.2008 and that, too, bounced on 10.01.2008. The said cheque was substituted by a new pay order dated 04.02.2008 which was realized. The payment for the month of January, 2008 was also made on or about 22.01.2008. Nothing was paid for the months of February 2008 and March 2008.
3. The learned Counsel for the plaintiffs placed reliance on a decision of the Division Bench of this Court in the case of V.P. Puri and Ors. v. Union of India 2001 III AD (DELHI) 669 to show that circumstances in the present case clearly call for an order striking off the defense of the defendants in view of the fact that they have repeatedly disobeyed the orders of this Court passed under Order 39 Rule 10 CPC for making payments. The learned Counsel also placed reliance on Erum Travels v. Kanwar Rani : 69(1997)DLT567 and Mrs Purnim Dhawan and Anr. v. Agmoz Online Pvt. Ltd. : 2003(66)DRJ218 .
4. The learned Counsel for the defendants submitted that there was some difficulty which had been faced by the defendant No.1 as a result of which the payments were not made regularly. He submits that now the difficult period is over and the defendant No.1 would be able to honour all of its commitments towards monthly payments. He submitted that one opportunity be granted to the defendants to comply with the orders on a month to month basis.
5. Considering the arguments advanced by the learned Counsel for the parties, it is clear that the proposition that this Court has powers to strike off the defense of the defendants on account of non-compliance of orders passed under Order 39 Rule 10 CPC cannot be disputed. In the present case, I find that the conduct of the defendants has not inspired much confidence. They have not complied with the orders and have repeatedly issued cheques which have bounced. However, as a last and final opportunity, I allow the defendants to make payment of the arrears for the months of February and March, 2008 within one week from today, if not already made. Insofar as the future payments are concerned, they shall be made by making deposits in this Court by pay orders in favor of the Registrar by the 7th day of each month. The moment the payments are made by the defendants, the plaintiffs shall be entitled to withdraw the same on a month to month basis. It is made clear that if there is a default in either making the payment of arrears within one week or the monthly payments by the defendants, their defense shall stand struck off without any further orders of this Court. It is reiterated that the payments that would be made by the defendants and which would be received by the plaintiffs, would be without prejudice to the rights and contentions of the parties.
This application stands disposed of.