Full Text
HIGH COURT OF DELHI
Date of Decision: May 23, 2023
M/S FAIRGROWTH SALES PVT. LTD. ..... Appellant
Through: Mr. Pradeep Chhindra, Mr. Rajan Chawla, Ms. Pooja Joshi and
Mr.Sumit Nagpal, Advocates.
Through: Mr. Gautam Dutta, Advocate.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO (Oral)
JUDGMENT
1. This appeal has been filed challenging judgment and decree dated March 11, 2020, in CS (COMM) No. 214/2019 passed by learned District Judge (Commercial Court), East District, Karkardooma Court, whereby learned District Judge has decreed the suit in favour of the respondent herein and against the appellant for a sum of Rs. 46,23,040 /- along with interest at the rate of 7% per annum from the date of filing of the suit till the realization of the decretal amount.
2. When the appeal was listed on October 21, 2020, this Court, subject to the Appellant depositing 50% of the decretal amount with the Registrar General of this Court, had stayed the operation of the judgment and decree till the next date of hearing. The said order had been confirmed and directed to be continued during the pendency of the appeal, on May 20, 2022.
3. As per the Office noting dated November 09, 2020, following has been stated by the Registry with regard to the deposit made:- “May kindly see office note of Civil-Ill Branch dated 06.11.2020 (received by Cash- II Branch on 09.11.2020) whereby the Civil-Ill Branch has forwarded the case file along with a Demand Draft No. 956886 dated 27.10.2020 for Rs.23,11,520/- for further necessary action in terms of order dated 21.10.2020. Reference order dated 21.10.2020 and office order No.750/E-V/Estt.-II/DHC dated 28.11.2015, a Demand Draft No. 956886 dated 27.10.2020 for Rs.23,11,520/- (Rupees Twenty Three Lakh Eleven Thousand Five Hundred Twenty only) drawn on Canara Bank, Khar, Mumbai - 400052 may be sent to UCO Bank, Delhi High Court Branch for obtaining FDR for a period of one year in the name of the Registrar General, High Court of Delhi in automatic renewal mode. DFA is added accordingly, if approved, may issue please.”
4. It is submitted by learned counsel for the appellant that let the learned District Judge consider the appellant’s leave to defend, if permitted to be filed, and pending the decision, amount deposited, be retained in this Court. The submission made by counsel for the appellant is that due to the delay in filing the appearance by 34 days, the learned District Judge has decreed the suit. According to him, the reasons for not filing the appearance on time have been spelt out in paragraph 3 of the application seeking condonation of delay, while filing the appearance before the learned District Judge, which we reproduce as under:
5. Today before us, the learned counsel for the appellant has drawn our attention to the certificate issued by the Doctor, whereby the Doctor has advised the Director of the appellant company minimal physical exertion and physiotherapy for a period of one month. He additionally states, the summons were received by an office boy on October 30, 2018, which was brought to the notice of the Director Sh. Tejinder Pal Singh only on November 26, 2018, and immediately thereafter, along with an application for condonation of delay the appearance was filed.
6. Though, learned counsel for the respondent would contest the grounds urged by the counsel for the appellant before the learned District Judge and even before us seeking condonation of delay in filing appearance, when it was put to him whether he would be agreeable, if this Court permit the appellant to file the leave to defend the suit to which a reply can be filed by the respondent herein for a decision by the learned District Judge, on the same by retaining the amount which has been deposited by the appellant in this Court in terms of order dated October 21, 2020, he on instructions is agreeable to the same.
7. If that be so, we set aside the Judgment/decree dated March 11, 2020, of the learned District Judge and remand the matter back to the learned District Judge (Commercial Court), East District, Karkardooma Court, subject to the appellant filing leave to defend within two weeks from today and also granting two weeks to the respondent herein to file reply to the leave to defend, which shall be considered and decided by the learned District Judge in accordance with law.
8. Accordingly, we fix the date of hearing before the learned District Judge as July 04, 2023.
9. The Appeal is disposed of. Pending application, if any, also stands disposed of.
10. The amount deposited in this Court in terms of order passed by this Court on October 21, 2020, shall continue to be retained in this Court and shall be subject to the further orders to be passed by learned District Judge in CS (COMM) No. 214/2019.
11. Counsel for the parties are given liberty to place this order on the Board of learned District Judge by way of an affidavit.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. MAY 23, 2023