Infrastructure Leasing And Financial … vs Santosh Baweja on 14 November 2003

Delhi High Court
Infrastructure Leasing And Financial … vs Santosh Baweja on 14 November, 2003
Equivalent citations: 108(2003)DLT546
Author: C.K. Mahajan
Bench: C.K. Mahajan
JUDGMENT

C.K. Mahajan, J.

1. The plaintiff has filed the present suit for recovery of Rs. 49,56,500/- under Order 37 Rules 1 and 2, CPC.

2. On the request of defendant, the plaintiff agreed to take the ground floor of property bearing No. B-34, Friends Colony (West), New Delhi-110065 of the defendant on lease for a period of two years. Accordingly a lease agreement dated 10.1.1997 and depos it agreement dated 10.1.1997 were executed between the parties setting out the terms and conditions of the said lease. The lease was for a period of two years commencing from 10th January, 1997 to 9th January, 1999 on a monthly rent of Rs.15,000/-payableon 7th of each calendar month in advance by the plaintiff to the defendant. The plaintiff had to deposit with the defendant a sum of Rs. 44 lakhs as interest free refundable security, which was deposited by way of cheque No. 648562 dated 16.1.1997 drawn on Sanwa Bank Ltd., Upper Ground Floor, Merceantile House, 15, Kasturba Gandhi Marg, New Delhi-110001. The defendant issued the receipt dated 10th January, 1997 acknowledging the receipt of aforesaid cheque. The amount was required to be refunded to the plaintiff on termination of the lease deed either by afflux of time or on the option of termination of the lease by the parties. After expiry of the said lease, the defendant again expressed her wishes to lease out the said portion of the premises to the plaintiff. A lease deed dated 20th May, 1999 was executed between the parties setting out terms and conditions of lease. The same was for a period of two years commencing from 10th January, 1999 to 9th January, 2001 on a monthly rent of Rs. 7,300/-. The amount of Rs. 44 lakhs deposited by the plaintiff with the defendant as security deposit remained with the defendant. By letter dated 5th December, 2000, the plaintiff informed the defendant about its intention to vacate and to handover vacant and peaceful possession of the said premises to the defendant and requested her to keep the security deposit ready to be handed over to the plaintiff. However, nobody came forward to take possession of the premises and to refund the security deposit. The plaintiff again sent a letter dated 10th January, 2001 to the defendant by regd. post to refund the security deposit but to no avail. Legal notice dated 13th September, 2001 was sent to the defendant demanding security deposit of Rs. 44 lakhs along with Rs. 3,70,500/- on account of default of 247 days at the rate of Rs. 1,500/- for each day in terms of Clause 20 of the lease deed dated 20th May, 1999. Despite legal notice, the defendant failed to refund the security deposit Along with the interest. Hence the present suit.

3. Summons for appearance under Order 37 Rule 2(2), CPC in the form 4 Appendix B were issued to the defendant, which were served on the defendant through her daughter Mrs. Lily Gupta on 24th April, 2002. However, she failed to enter appearance with the prescribed period of 10 days.

4. The defendant has filed an application being I.A. 7136/2002 under Order 37 Rule 7, Section 5 of Limitation Act read with Section 151, CPC seeking condensation of delay in entering appearance with the prescribed period of 10 days from the date of service of summons. It is contended that defendant is an old lady of more than 90 years age. She generally remains sick and is a chronic patient of acute Asthma and High Blood Pressure. The summons were received by Mrs. Lily Gupta, daughter of defendant on 24th April, 2002. However, during the said period, the applicant/ defendant was having severe attack of Asthma repeatedly on account of change of weather and was strictly confined to bed under medical advice. Medical certificate issued by Dr. (Mrs.) Pravina Sahunja is enclosed with the application. The family members of the applicant were strictly advised by doctor that under no circumstances the applicant should be put under any kind of stress or tension, which may spoil otherwise deteriorating condition of the applicant. The process server informed the daughter of the applicant that the case would be listed before this Court on 27th August, 2002. The next date is also reflected in the summons. The daughter of the applicant did not consider it fit to apprise the applicant about the summons received from this Court keeping in view the indifferent state of health of the applicant and the fact that the case was fixed for 27th August, 2002. The daughter of the applicant did not aware of the legal and technical formalities of Order 37, CPC. She kept the summons in her drawer. The condition of the applicant kept on deteriorating day by day and she was hospitalized in Shubham Hospital at Kalkaji, New Delhi from 26th April, 2002 to 29th April, 2002. On account of aforesaid reason and due to her own poor physical condition, the daughter of the applicant forgot about receipt of summons and did not intimate the applicant about the receipt of the same. In the first week of August, 2002, the physical condition of applicant started improving. On 8th August, 2002, when daughter of defendant was looking for some important papers in her drawer, she came across the summons and copy of the petition. The applicant came to know about receipt of summons from her daughter on 8th August, 2002. She instructed her daughter to contact her Counsel and apprise him about receipt of summons. It is in these circumstances, the applicant could not enter appearance within the prescribed period of 10 days. By way of I.A. 7155/2002, the defendant entered appearance on 12th August, 2002.

5. Reliance is placed on the decisions of this Court in the matter of Ashwani Kumar v. Lawrence Public School, wherein this Court held as under :

“6……..The cause which he assigned in his application did amount to a sufficient cause. The plea put forth by the defendant that the figure of “27893” appearing at the right hand top of the summons gave an impression of its being a date of hearing – 27.8.1993, as there was no other date of hearing mentioned in the body of the summons does not found to be unreasonable or improbable.

8. Be that as it may, the case had not proceeded any further beyond mere issue of summons to the defendant. He having made appearance and having assigned a good reason for his belated appearance which reason on its face did not found unacceptable should have been accepted as sufficient cause for condensation of delay in making appearance affording the defendant-petitioner an opportunity of hearing and participation in the proceedings…..”

6. Further reliance is placed on a decision of this Court in the matter of Gurnam Singh and Another v. Kulbir Singh, , wherein this Court held as under:

“4. I have heard learned Counsel for the parties. In my view, under circumstances of the case, reasonable efforts should have been made to have a party served personally which has not been done in the present case. In the present case, I find that defendants have not been served with summons for judgment personally in accordance with the provisions of Order 37 Rule 3(4), CPC. Since the service of summons for judgment was effected through the wife of brother of petitioner/defendant No. 1 in the suit which is not a proper service.”
7. The application is opposed by the plaintiff. It is contended that the averments made by the defendant in the application are fabricated. The defendant was required to enter appearance within 10 days from the receipt of the summons. It is contended that defendant was aware of pendency of the present suit as the plaintiff in addition to the summons sent in the ordinary manner also sent a copy of the suit to the defendant through Regd. A.D. Post. The same was duly received by the defendant on 27th August, 2002. Copy of the A.D. card is placed on record. It is contended that defendant has made a wrong submission on oath that she was not aware about the summary suit till 8.8.2002. The defendant has fabricated the facts to obtain the permission to defend the suit on sympathetic ground of the defendant being an aged and sick lady and not being aware about the pendency of the case. It is contended that since the defendant failed to enter appearance with the prescribed period of 10 days, the suit be decreed.

8. Reliance is placed on the decisions of this Court in the matter of Marson Biocarc Private Ltd. (MBPL) v. ACE Laboratories Ltd. and Ors., (S. No. 2204/ 99) decided on 30th November, 1999; U.K. Paints (India) Ltd. v. Surlux Medi Equip Ltd. and Anr., ; Dolf Leading Ltd. v. Viiay Cable Industries and Anr. 2001 VII AD (Delhi) 309, wherein this Court decreed the suit in favor of the plaintiff and against the defendants as they failed to enter appearance within the stipulated period of 10 days.

9. Reliance is also placed on the decision of Full Bench of this Court in the matter of Printpak Machinery Ltd., New Delhi v. Jay Kay Paper Congeters, New Delhi, , wherein this Court hold as under :

“4. Chapter XV of the Original Side Rules deals with ‘Summary Suits’. It applies to all suits upon bills of exchange, hundis or promissory notes : Rule 1. The procedure it prescribes is substantially the same as that which was contained in Order 37 of the Civil Procedure Code. The defendant cannot appear or defend the suit unless he obtains leave from the Court; Rule 3. There are, of course small differences. For example, of course; small differences. For example, Rule 2 permits the application for leave to be made within 20 days from service of summons, as against the 10 days allowed under the Code read with the Limitation Act. Divergencies, such as this, are resolved by Rule 12 which says:
“The provisions of Order 37 of the Civil Procedure Code so far as they are not inconsistent with the provisions contained in this chapter shall apply to suits to which this chapter applies.’ Thus, in the event of conflict, the rules in Chapter XV override Order 37, But since, until 1976, the procedures in both were largely akin. There was hardly ever need to invoke Rule 12, at least I do not know of any case in which that rule was called in aid.”
10. I have heard learned Counsel for the parties and perused the documents on record. I have also perused the prescribed proforma for summons for appearance in the Code of Civil Procedure and the proforma prescribed by this Court on which the summons were issued. Service of summons in the prescribed form is admitted.

11. In terms of the summons for appearance, the defendant is required to enter appearance within 10 days of such service. If he fails to do so the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. This is a suit filed under the summary procedure of Order 37, CPC.

12. The explanation forthcoming from the defendant for delay in entering appearance is that the next date of hearing was indicated in the prescribed form as 27th August, 2002 and the defendant being a lay person did not go through the printed form requiring the defendant to enter appearance within 10 days. Moreover, the defendant is an old lady of 90 years of age. She generally remains sick. Summons were received by her daughter on 24th April, 2002. She kept the summons in the desk as at that point of time, the mother/defendant was ailing and had to be hospitalised.

13. The test whether or not the cause shown by the defendant is sufficient or not, the Court has to see whether the/parties exercise due care and attention and whether the grounds as set out in the pleadings constitute sufficient cause preventing the defendant from entering appearance within time. The proforma prescribed in the Code of Civil Procedure is at variance with the proforma prescribed by this Court. The said proforma does not contain a column showing the next date of hearing. However, the proforma prescribed by this Court indicates the next date of hearing. It appears that the defendant and daughter being the lay persons did not read the printed material in the summons directing them to enter appearance within 10 days and were under the impression that suit was listed on 27th August, 2002. The defendant however entered appearance on 12th August, 2002. The appearance was well before the next date of hearing mentioned in the summons.

14. The Court cannot ignore the fact that the party was misled by the date mentioned in the summons coupled with the fact that defendant is an old lady of 90 years of age and was sick. The reasons assigned by the defendant for the delay in entering appearance appear to be bona fide. The plea of the defendant is neither unreasonable nor improbable. The plaintiff was unable to show that the applicant had deliberately not acted in defending the suit and is thus liable to suffer the consequences. The defendant ought to be afforded an opportunity of hearing and participation in the suit. This is not a case where a decree has been passed against the defendant and that there is prayer for setting aside of the decree. The suit is at its initial stage.

15. There are series of decisions that have found favor with the explanation given by the defendant. I draw support from the decision of this Court in the matter of V.N. Sood v. Dr. Gurbachan Singh, 1981 (2) All India Rent Control Journal 284, wherein this Court in similar circumstances condoned the delay. I also endorse the view taken by R.C. Lahoti, J. in the matter of Ashwani Kumar v. Lawrence Public School (supra). Each case is to be decided on its own peculiar facts and circumstances. The decisions relied upon by the plaintiff are distinguishable on facts.

16. I am satisfied that sufficient cause has been shown by the defendant for condensation of delay in entering the appearance.

17. For the reasons aforesaid, the application is allowed, subject to payment of Rs. 5,000/- as costs. The delay in entering appearance is condoned.

I.A. 7357/2002:

In light of orders having been passed in I.A. 7136/2002, present application is not maintainable and is dismissed as such.