Amartex Industries Ltd. v. Navin Kumar

1. This petition is filed under Section 227 of the Constitution of India impugning the order of the trial court dated 3.10.2012 by which the trial court refused to recall the order dated 11.8.2010 closing the right of the petitioner/defendant to file the written statement and also refused to set aside the ex parte order dated 1.3.2011. Applications for recalling of the orders dated 11.8.2010 and 1.3.2011 were filed alongwith the applications for condonation of delay inasmuch as the applications for recalling of the orders dated 11.8.2010 and 1.3.2011 were filed only on 3.11.2011. 2014:DHC:4400

2. The subject suit is a suit for recovery of Rs.73,997/- filed by the respondent/plaintiff against the petitioner/defendant company on account of manufacturing and installation by the respondent/plaintiff of sign/display boards for the petitioner/defendant.

3. The grounds given for condonation of delay and for setting aside of the orders closing the right to file written statement and recalling of the orders were two-fold. Firstly, entire blame was laid on the previous counsel who was conducting the case for the petitioner/defendant and the second reason given was of change of the legal set up of the petitioner company. These aspects have been rejected by the trial court by making the following observations in paras 9 and 10 of the impugned order dated 3.10.2012 and which paras read as under:- “9. The defendant has laid the entire blame on his previous counsel. However, it is clear that the defendant was itself supposed to be vigilant in keeping a track of the proceedings. It is clear that none of the officials of the defendant company had appeared before the court on any date of hearing. The least which could have been done by the defendant was to make regular inquiries from its counsel. However, it appears that the defendant did not even contact his previous counsel so as to ascertain the progress of the case. No steps were taken by the defendant for preparation of the written statement.

10. Even the alleged plea of lapses on the part of the previous counsel is not substantial. No complaint has been made by the defendant to the Bar Council of Delhi alleging any professional misconduct or negligence on the part of the counsel. There is also no material on record to substantiate the plea of the defendant regarding change in set up of the defendant company. It is clear that the defendant was itself negligent in defending the suit.”

4. I completely agree with the aforesaid conclusions because not only no complaint has been filed before the bar council against that counsel but even no notice has also been issued to the earlier advocate on the ground that he allegedly had committed negligence in not informing the petitionercompany. Also, only a self-serving averment of change of legal set up was made without giving any detailed particulars / facts with respect to what was the change, who were the officers who were changed, the period in which the change took place as also other related facts and so on and which plea was also not supported by any document whatsoever.

5. In view of the above, there is no error in the impugned order, and the present petition is hence dismissed, leaving the parties to bear their own costs.

SEPTEMBER 04, 2014 VALMIKI J. MEHTA, J. ib