LEASEPLAN INDIA PVT. LTD. v. HALLAX APPLIED POWER PVT.LTD

1. This is a chamber appeal filed by the defendant against the order dated 07.10.2013. Vide the said order, the learned Joint Registrar had rejected the prayer to take the written statement of the defendant on record as it was filed beyond the prescribed time and the same was not accompanied with an application for condonation of delay. The court had also noted the fact that the appellant had not paid the cost of `15,000/- imposed vide order dated 21.05.2013 2014:DHC:141 to the opposite side for the adjournment granted to the appellant to conduct the admission/denial of documents.

2. I have heard the learned counsel for the defendant.

3. It has been contended by the learned counsel for the defendant that the order which has been passed by the learned Joint Registrar is a very harsh order as it has not taken into account the factum of the liquidator having been appointed by the company court because of which the written statement could not be filed on time. It was also contended that on the date fixed before the Joint Registrar i.e.07.10.2013, he could not arrange the cost to be paid and had requested the court to pass over the matter to be taken up in the afternoon so as to enable him to pay the cost, but the court did not oblige him and consequently, the right of the defendant to file the written statement was closed without any justifiable reason.

4. I have carefully considered the submissions made by the learned counsel and also gone through the orders passed. This is a suit filed by the plaintiff against the defendant for a mandatory injunction to take possession of two luxury cars for which the plaintiff had given the loan and entered into a lease agreement. In terms of the lease agreement, the plaintiff was required to pay the lease amount for each of the cars amounting to ` 1,05,448/- per month. However, the defendant defaulted in payment of the same. The plaintiff apart from initiating the action for winding up and prosecution of the directors of the defendant/Company and its Directors for violation of the provisions of Negotiable Instruments Act, 1881, had chosen to file the present suit seeking mandatory injunction. The defendant had tried their level best to see that the process in respect of the suit is not served. Consequently, the court was left with no alternative but to effect service on the defendant by way of pasting. This order for effecting service on the defendant was passed by the court on 06.09.2012. The defendant was required to file the written statement in the prescribed time. The written statement has been filed only on 24.07.2013. In between the matter was taken up by the court. Neither the written statement was filed nor the enlargement of time in this regard was sought.

5. In the chamber appeal, the defendant has stated that the written statement could not be filed on time as the liquidator was appointed by the company court. Even though the provisional liquidator was appointed, still the matter before the company court was subsequently compromised and permission was granted to the plaintiff vide order dated 09.04.2013 to proceed with the present suit. Even if the period from 05.11.2012 to 09.04.2013 is excluded, still the written statement ought to have been filed within 30 days or within the extended period of 120 days along with an application for condonation of delay. Although, the written statement was filed on 24.07.2013, but no application for condonation of delay explaining the reasons for the delay had been filed by the defendant. This clearly shows callousness on the part of the defendant that they can act with impunity. The appellant has also not paid the cost of `15,000/- which was imposed vide order dated 21.05.2013 for grant of an adjournment for the purpose of conducting the admission/denial of documents. Even today, when the matter was taken up, the defendant was asked as to whether he is ready and willing to pay the cost so that the question of admission/denial and the taking of written statement on record could be considered, but the learned counsel for the defendant expressed his inability.

5. Having regard to the aforesaid background, I feel that no fault can be found with the order of the learned Joint Registrar dated 07.10.2013 whereby the right of the defendant to bring on record the written statement has been closed. Accordingly, the present chamber appeal, in my considered opinion, is without any merit and the same is dismissed. V.K. SHALI, J. JANUARY 08, 2014 dm