Narender Singh Narang v. Harsha Capital Services Ltd.

1. This application has been moved for restoration of the petition which on 22.07.2013 was dismissed on account of non appearance of counsel. It is submitted that the failure to appear was on account of the counsel’s indisposition – asthma and fever on that date. The medical prescription qua the same date has been annexed to the application. The affidavit supporting petition is dated 12.08.2013. This court deems it proper to restore the petition for the grounds mentioned in the application. Application is allowed. Petition is restored. 2014:DHC:474

2. The petitioner impugns an order dated 15.12.2012 whereby the petitioner’s (defendant’s) application for condonation of delay in filing memo of appearance in Suit No.250/2011 under Order 37 Rule 3(7) CPC was dismissed. The memo of appearance was filed on 28.1.2012 whereas the summons as per Order 37 Rule 3 CPC was first sent in September, 2011 and finally served on 26.12.2011; there was a delay of more than four months from the date of service of summons and the memo of appearance was barred by time, and there was no special circumstance made out to condone the delay. The Trial Court reasoned that summons were also issued through registered covers and affixation at the defendant’s address at S-210, First Floor, Greater Kailash, Part-II, New Delhi-48. Appearance was entered on 24.1.2012. On 28.12.2012, an application was filed seeking condonation of delay in appearance. The statutory period of ten days from the service of summons had long since passed. The reasons offered for condonation of delay were that the petitioner was travelling outside Delhi and only upon his return on 6th January, 2012 he found the notice in the morning of 7th January, 2012. He attended Dwarka Courts at 2.00 pm but fell ill and could not communicate with his counsel regarding the litigation. His treatment continued upto 17.1.2012 and he consulted his lawyer only on 21st January, 2012 since the latter was engaged in professional work in the High Court at Allahabad. The learned counsel submits that the delay was not intentional but occasioned on account of the petitioner’s first being out of station and then falling ill and subsequently his lawyer was out of station. He relied upon the medical certificate and travel cash memo of a bill to authenticate his contention. The Trial Court considered the medical certificate dated 8.1.2012 unreliable since the defendant being the resident of Greater Kailash had produced a certificate of a Doctor operating his clinic at Sabzi Mandi, Janakpuri, New Delhi which are at the opposite ends of the city. Furthermore, nothing was placed on record to support the claim that the defendant had undergone some medical treatment for the period of the delay. The Court also considered that similar medical certificates had been issued by the same Doctor, in proceedings pending between the parties in a criminal complaint under Section 138 of the Negotiable Instruments Act. It reasoned that if the defendant could appear before the Dwarka Courts at 2.00 pm in another proceedings, there was no reason for the delay in filing the appearance in the suit. Thirdly, that the cash bill for travel from Delhi to Amritsar on 7.1.2012, was issued by a travel agency of Mall Road, Tilak Nagar, New Delhi whereas the defendant was a resident of Greater Kailash, Part-II, New Delhi. The aforesaid reasons were found unconvincing hence the application for condonation of delay was dismissed. This Court has considered the facts and circumstances of the case, the reasons for and the conclusion arrived at in the impugned order do not call for any interference. The view taken is plausible both in the facts and in law. The petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JANUARY 24, 2014