Full Text
HIGH COURT OF DELHI
WALLTRACTS INDIA PVT LTD ..... Appellant
Through: Mr. Satpal Singh, Advocate
Through: Mr. Aaditya Vijay Kumar and Ms. Akshita Katoch, Advocates
JUDGMENT
1. Allowed, subject to all just exceptions.
2. The application stands disposed of. FAO 207/2022 and CM APPL. 34860/2022 (stay)
1. By way of present appeal, the appellant assails the order dated 13.05.2022 whereby its application filed under Order XXXVII Rule 4 CPC read with Order IX Rule 13 CPC read with Section 151 CPC was dismissed.
2. By way of the above application, the appellant has sought setting aside of the ex-parte judgment and decree dated 25.04.2016 passed in Civil Suit No.116/2015 titled as Somfy India Pvt. Ltd. Vs. Walltracts (India) Pvt. Ltd.
3. Mr. Aaditya Vijay Kumar, learned counsel for the respondent took a preliminary objection to the maintainability of the appeal. He submitted that the impugned order having been passed under Order 37 Rule 4 CPC is not appealable under Order 43 Rule 1 CPC.
4. The necessary facts for adjudication of the present appeal are that the respondent has filed the underlying summary suit for recovery of money under Order XXXVII Rule 1 CPC. In the suit, it was claimed that the plaintiff was in the business of Electrical motors and Controls for automation of window coverings. The appellant/defendant being in hospitality industry approached the respondent/plaintiff for supply of its products. The appellant placed orders whereby the respondent No.1 raised the invoices. The appellant however, failed to clear the outstanding dues which led to the filing of the suit. The summons in the suit were duly served on the appellant. The appellant has claimed to have received the summons on 10.03.2016 and also informed its counsel to appear. However, its counsel on account of suffering from infection failed to appear before the Court. The Vakalatnama/Memo of Appearance was also filed beyond the permitted time on 25.04.2016.
5. Although learned counsel for the appellant sought to advance arguments on the merits of the case, however, considering that the maintainability itself has been called into question, this Court sets out to decide the issue of maintainability at the first instance as merits of the case is not a relevant consideration at this stage. Learned counsel for the appellant could not refer to any CPC provision under which the appeal would fall, however has contended that due to likeness of the two provisions, which essentially deal with power of the Court to set aside an ex-parte decree, appeal may be deemed maintainable against the order passed under Order 37 Rule 4 of CPC, since it is maintainable against an order passed under Order 9 Rule 13 of CPC.
6. This rudimentary parity being drawn to maintain the appeal when no provision has been provided for in the CPC is not even ingenuous for the Court to appreciate the attempt. Appeal, which is a statutory right must be explicitly provided for in a statute and can’t be inferred or assumed for practical convenience.
7. Pertinently, Order 37 CPC relates to summary procedure applicable to summary trial for expeditious adjudication of commercial suits. Under sub-rule 2, on being served, a defendant is required to enter appearance, failing which the averments in the plaint are deemed admitted and the plaintiff becomes entitled to a decree. The defendant is required to appear within ten days of the receipt of summons and file memo of appearance. On defendant’s appearance, the plaintiff is required to serve the defendant with summons for judgment and within ten days of such service, the defendant is required to apply for leave to defend the suit. The Court thereafter either passes an order dismissing the leave to defend and decreeing the suit, or grants conditional leave to defend on such conditions as it may think fit, or grants unconditional leave to defend.
8. The principles governing a suit under Order 37 CPC have been delineated by the Supreme Court in IDBI Trusteeship Services Limited v. Hubtown Limited reported as (2017) 1 SCC 568, where it has been held that Order 37 CPC is a complete code in itself. Order 37 Rule 4 provides for setting aside of an ex-parte decree passed under preceding Rule 6. There is no choice available to a party to either chose to file an application under Order 37 Rule 4 or Order 9 Rule 13 CPC. Order 37, being a complete code in itself, does not countenance borrowing the remedies from other provisions of the CPC, outside of the Order 37 code. The relevant extract reads as under:
9. In Rajni Kumar v. Suresh Kumar Malhotra and Another reported as (2003) 5 SCC 315, the Supreme Court had earlier also highlighted the scope of the aforesaid two provisions in the following manner:
10. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the Court to grant leave to the defendant to appear to summons and defend the suit if the Court considers it reasonable so to do, on such terms as Court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 CPC is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the Court is empowered to grant leave to defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by way of affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 CPC is different from Rule 13 of Order 9 CPC.
11. Rajni Kumar (Supra) does not leave the issue open for further discussion by this Court. Order 43 Rule 1 CPC does not countenance an appeal filed against the Order passed under Order 37 Rule 4 of CPC. Even this Court in Zafar Badyari v. Sandeep Singh reported as 2023 SCC OnLine Del 2228 while following the abovenoted decisions concluded that against an order passed under Order 37 Rule 4 CPC, an appeal under Order 43 Rule 1 CPC would not be maintainable. Accordingly, the preliminary objection raised by the respondent is upheld and the appeal is dismissed.
12. The appellant shall be at liberty to seek appropriate remedy in accordance with law.
13. It is clarified that this Court has not gone into the contentions of either of the parties relating to the merits of the case.
JUDGE MAY 04, 2023