M/S Lintas India Pvt. Ltd. v. M/S Prasar Bharti

Delhi High Court · 18 Jan 2023 · 2023:DHC:384

Mini Pushkarna

CS(COMM) 72/2018

2023:DHC:384

civil appeal_allowed Significant

AI Summary

The Delhi High Court condoned a 43-day delay in entering appearance in a summary suit under Order 37 CPC, holding that bona fide administrative lapses and ignorance of procedural timelines constitute sufficient cause for relief to ensure substantial justice.

Full Text

Neutral Citation Number: 2023/DHC/000384

CS(COMM) 72/2018
HIGH COURT OF DELHI
CS(COMM) 72/2018, I.A. 5210/2018, I.A. 5428/2018, I.A.
15490/2018 M/S LINTAS INDIA PVT. LTD. ..... Plaintiff
Through: Mr. Yogendra Misra and Mr. Chandan Malav, Advocates

VERSUS

M/S PRASAR BHARTI .....Defendant
Through: Ms. Shruti Sharma, Mr. Saket Chandra and Mr. Pranav Gigi, Advocates

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

18.01.2023 MINI PUSHKARNA, J. I.A. No. 15490/2018 (Application on behalf of plaintiff seeking condonation of delay under Section 151 CPC in filing the affidavit in response)

1. This is an application on behalf of the plaintiff seeking condonation of delay of 33 days in filing affidavit in response to I.A. No. 5428/2018 filed on behalf of the defendant.

2. Considering the averments made in the application, the delay of 33 days in filing the affidavit on behalf of plaintiff is condoned.

3. Application is disposed of. I.A. No. 5428/2018 (Application under Order 37 Rule 3(7) CPC read with Section 151 CPC on behalf of defendant for condonation of delay in entering appearance)

4. This is an application under Order 37 Rule 3(7) of the Code of Civil Procedure, 1908 (in short „CPC‟) read with Section 151 CPC on behalf of the defendant for condonation of delay of 43 days in entering the appearance in the captioned suit under Order 37 CPC.

5. The present suit has been filed as a summary suit under Order 37 CPC against the defendant for recovery of a sum of Rs.3,80,87,166/- and interest thereon amounting to Rs.98,44,475/along with interest @ 18% per annum from the date of filing of the suit till payment and realization.

6. It is the case on behalf of the defendant that summons of the suit were served upon the defendant on 23.02.2018. Unfortunately, in the office where the summons were served, none was aware of the provision of Order 37 CPC or the import thereof. No functionary was aware that in such a suit, appearance has to be entered within 10 days from the date of service. The summons were taken to be routine summons in suits. By way of administrative processing without realising the nature of the suit and the action required, the matter was transferred to the Directorate General: Doordarshan, on 05.03.2018, since the disputes related to dealing between the Directorate General of Doordarshan of the defendant and the plaintiff.

7. It is submitted on behalf of the defendant that even in the Directorate General: Doordarshan, initially it was not noticed that the present was a suit under Order 37 CPC and that appearance had to be entered within 10 days of the service. Since the records relating to the dealings between the parties were with the Vigilance Section, by letter dated 14.03.2018, the Vigilance Section was required to provide the same. The Vigilance Section returned the records in 3rd week of March, 2018. The matter was processed by the concerned Deputy Director, Administration in the first week of April, 2018. It was recorded by the said Deputy Director (Administration) that the matter appeared to be complex having both administrative and legal ramifications. It is the case of the defendant that it was in the course of the processing that it was realised by a functionary that the suit was of a summary nature in which leave ought to be filed within 10 days from the receipt of the summons. However, even at that stage the consequence of not entering appearance within 10 days was not noticed. It is submitted that it is only when papers were forwarded to the counsel that he brought to the notice of the defendant the legal position. Thereafter, the matter was considered at the highest level and a decision was taken to file the instant application for condonation of delay in entering appearance.

8. It is submitted that the delay in entering appearance on behalf of the defendant was not wilful or intentional. It was solely on account of the fact that the functionaries who received the summons and those to whom the summons and the papers were forwarded by way of administrative processing, were completely ignorant and oblivious of the provisions of Order 37 CPC. They were not aware of the fact that in a summary suit appearance has to be entered within 10 days of service nor were they aware of the consequences of not entering appearance within 10 days. Thus, it is submitted that the defendant entered appearance in this Court on 17.04.2018 by way of filing the present application. It is therefore, prayed that the delay of 43 days in entering appearance by the defendant may be condoned.

9. In support of its submissions, the defendant has relied upon the following judgments:-

1) Collector, Land Acquisition, Anantnag and Another Vs. MST Katiji and Others, (1987) 2 SCC 107.

2) Ram Nath Sao and Others Vs. Gobardhan Sao and Others, (2002) 3 SCC 195.

3) HDFC Vs. Anil, 2000 (56) DRJ (Suppl) 226.

4) Babu Lal Yadav Vs. R.S. Yadav & Co. & Anr., (2010) 4 Del 517.

5) Shyam Singh Khatri & Anr. Vs. M/S ICICI Home Finance Co. Ltd., (2012) 194 DLT 673.

6) Hector M. Mehta Vs. CRB Capital Markets Ltd. & Ors., 2002 (63) DRJ 408.

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10. On the other hand, on behalf of plaintiff, the present application is opposed vehemently. It is submitted that the summons of the suit were duly served upon the defendant on 23.02.2018 along with copy of the plaint and documents thereto. In terms of Order 37 Rule 3 CPC, the defendant could have within 10 days of such service, entered appearance if it had intention to defend the suit. The defendant has purposefully neglected to do so and instead entered appearance on 17.04.2018 after a delay of 43 days. It is submitted that the defendant entered appearance once the application for summons for judgment was served upon it. It is submitted that in the absence of the defendant entering appearance in the time prescribed, the plaintiff shall be entitled to a decree for the sum mentioned in the plaint and defendant shall not be entitled to defend the suit.

11. It is submitted on behalf of the plaintiff that the delay in entering appearance cannot be condoned as the same would defeat the very summary nature of the present proceedings. It is submitted that the time limits prescribed under Order 37 CPC are mandatory in nature and ought to be given strict interpretation. Special circumstances must be shown that prevented the defendant from entering appearance.

12. It is vehemently argued on behalf of the plaintiff that the only reason provided by the defendant for its delay is that it was not aware of the consequences of compliance with the mandatory provisions of Order 37 CPC. It is well settled that the ignorance of law is not an excuse. The defendant has also contended that entering appearance was further delayed as the relevant records had to be located and approvals taken from the concerned officials. It is, thus, submitted on behalf of the plaintiff that Supreme Court has held that internal impediments such as unavailabity of concerned officials is not a valid ground for condonation of delay.

13. It is the case on behalf of the plaintiff that the defendant is a public functionary with decades of experience. It is entirely unbelievable that it would be oblivious of the import and urgency of Order 37 CPC and unaware of the consequences of not entering appearance within the statutory period. Defendant is a juristic entity formed under statutory and legislative framework. It can never be considered a layman or a lay company. Its employees and constituents are answerable not only under the Companies Act and Rules, but also as government servants bound by disciplinary acts and Rules. At the very least, they are expected to act responsibly and not in casual and negligent manner as demonstrated in the present case. It cannot be said that the defendant functionaries are illiterate that they can be absolved of any consequences for failing to place a legal process before their legal departments/advisers immediately.

14. It is submitted that liberal construction of the term „sufficient cause‟ cannot be accepted so as to defeat the entire purport of Order 37 CPC. It is vehemently argued that from the moment the first functionary read the words “High Court of Delhi”, “summons”, “Order 37”, and “within 10 days of service hereof”, there can be no claim of ignorance. Hence, the resulting inaction of multiple functionaries whose identities and status remains undisclosed to the Court, as well as the Vigilance Department, is nothing short of sheer ignorance. It is submitted that once the right to defend is extinguished under Order 37 CPC, it can be reinstated for „sufficient cause‟ and is not available to the defendant for mere asking.

15. In support of its submissions, plaintiff has relied upon the following judgments:-

1) Emmsons International Ltd. Vs. Harshvardhan Chemicals and Minerals Ltd., (2005) 116 DLT 156.

2) TVC Skyshop Limited Vs. Reliance Communication and Infrastructure Limited, (2013) 11 SCC 754.

3) Viceroy Hotels Ltd. Vs. Radha Thakur, 2012 SCC OnLine Del 2803.

4) Post Master General and Others Vs. Living Media India Limited and Another, (2012) 3 SCC 563.

5) M/s Lifelong Mediatech Pvt. Ltd. Vs. M/s United India Assurance Co. Ltd., 2018 SCC OnLine Del 9559.

16. I have heard learned counsels for the parties. The defendant had been asked to submit the original record for perusal of this Court, which has duly been perused by me.

17. The defendant seeks condonation of 43 days delay in entering appearance in the present suit under Order 37 CPC. It is established law that Court can excuse the delay of the defendant in entering appearance if sufficient cause is shown by the defendant.

18. In the present case, as per the pleadings before this Court, the summons in the suit were served upon the defendant on 23.02.2013. In terms of order 37 Rule 3 (5) CPC, the defendant was required to enter appearance within ten days from the service of summons. Accordingly, in the present case, the defendant was required to enter appearance by 05.03.2018. However, the defendant did not enter appearance by the said date, but entered appearance on 17.04.2018 after a delay of 43 days. Therefore, the issue before this Court is as to whether the delay in entering appearance in the present matter can be condoned or not.

19. The original file produced on behalf of the defendant shows the manner in which the present case was dealt with after receipt of the notice, as issued by this Court. The first noting on record is dated 14.03.2018, wherein it is noted that since the present case pertains to unpaid dues from DD Kisan channel for the media campaign and publicity undertaken during the pre launch and launch of the said Channel, the main file pertaining thereto is with the Vigilance Section in connection with ongoing investigation in the matter. Thus, it is noted that in the first instance, Vigilance Section may be requested to provide with all the relevant files and documents in their possession. The office noting dated 14.03.2018 is reproduced as below: ― F No. DDK/Court Case/ LINTAS/ 2018 Central Production Centre: Doordarshan Placed opposite is a Notice from the High Court of Delhi regarding CS(COMM) No. 72/2018 filed by M/s LINTAS India Pvt. Ltd. against Prasar Bharati, which has been received through PB Sectt., wherein the Plaintiff has sought realisation of Rs.3,80,87,166/- of unpaid dues including interest from DD Kisan for the media campaign and publicity undertaken during the pre-launch and launch of DD Kisan channel. The hearing in the case has been fixed on 18.04.2018.

2. In this regard it is submitted that main File relating to media plan and publicity of DD Kisan bearing No. CPC/DDK/DE/4(1)/2015-16 is already with the Vigilance Section of DG:DD in connection with ongoing investigation in the matter relating to media campaign and publicity undertaken during the pre-launch and launch of DD Kisan channel in 2015. Subsequently, when Vigilance Section had sought for other related documents/ Files on the subject, F. No. PB/ADG(O&L)/KC/2015/51 and File No. CPC/DDK/DE/Bill Media Plan/2015-16 were sent to Vigilance Section.

3. In order to prepare the defence on behalf of Prasar Bharati, all relevant records/ Files are required. We may, therefore, in the first instance request Vigilance Section to provide us with all the relevant Files/ documents in their possession, to enable this office to attempt the defence on behalf of Prasar Bharati (Respondent) in the above mentioned case, as per draft placed opposite. (A. Bhattacharya) DD(A) 14.03.2018 ADG(KC)‖

20. Thereafter, the matter was considered by the respondent as reflected in the next office noting which is dated 03.04.2018. It is by noting dated 03.04.2018, that it has been noted that since the issues involved in the case appear complex having both administrative and legal ramifications, assistance of legal experts may be taken. The office noting dated 03.04.2018 is reproduced as below: ―1.......... 2.........

3. As all relevant records/Files were required for preparing the defence on behalf of Prasar Bharati, Vigilance Section was requested to provide all the relevant Files/documents in their possession. Vigilance Section has since made available the Files mentioned in para ‗2‘ above, which are linked below.

4. It is stated that the claim of Rs.2,82,42,691/- as outstanding dues made by M/s LINTAS India Pvt. Ltd. is in relation to Phase-II media campaign undertaken by the agency, till the campaign was stopped midway in December, 2015. Since the entire matter as to how the work was assigned to M/s LINTAS India Pvt. Ltd. and on what basis payments were already made to the agency, had come into question, the claim was not approved for payment. To seek further directions as to how to deal with the matter, it was decided to seek advice and directions from Prasar Bharati Board, whereupon the directions, as mentioned at para ‗2‘ above, was given by the then CEO, Prasar Bharati.

5. The note which was referred to the PB Sectt. for consideration of the Board, copy of which is placed opposite, gives a detailed report in the matter. Also copies of the Invoices raised by M/s LINTAS India Pvt. Ltd. for total amount of Rs.2,82,42,691/- are placed opposite.

6. Since the issues involved in the case appear complex having both administrative and legal ramifications, we may seek the assistance of Legal Expert, DG:DD in drafting the response of Prasar Bharati in this case. The hearing in the case has been fixed for 18.04.2018. DD(A). 03.04.2018.‖

21. The matter was then referred to the Legal Expert, who by her note dated 04.04.2018 specifically noted that the present is a summary suit, in which appearance is required to be entered within 10 days from receipt of summons. Thus, the said legal expert categorically stated that the matter be assigned to an advocate immediately for entering appearance. The office note dated 04.04.2018 is reproduced as under: ―This is a summary suit, under Order – 37, CPC for recovery of a particular amount. In the said kind of suit a different procedure is followed. In fact the summons received from the court specifically states that we are required to enter appearance within 10 days from receipt of summons. It is advised we first assign the matters to our advocate immediately for entering appearance, before court, i.e. filing an appearance. The stage of preparation of a leave to defend application stating our defence, would be a subsequent stage, after entering appearance by our counsel. Roselta Ekka 04.04.2018‖

22. Pursuant to the aforesaid, the present counsel was engaged by the respondent and case papers were forwarded to him. Thus, as per the office noting dated 05.04.2018, in the light of advice of legal expert, case papers were delivered to the Standing Counsel for Prasar Bharati on 04.04.2018. The next office noting as occurring in the original file of the respondent after 05.04.2018 is dated 17.04.2018. In the said office noting it is clearly recorded that the Standing Counsel of the respondent had contacted the department official on 16.04.2018 and had asked for vakalatnama in his name. He further requested that all files related to media campaign and publicity of DD Kisan undertaken by the plaintiff herein, may be made available to him. Thus, as per the office noting dated 17.04.2018, 3 files relating to media plan and publicity of DD Kisan channel were handed over to the Standing Counsel on 17.04.2018. The office noting dated 17.04.2018 as occurring in the original file of defendants is reproduced as below: ― Reference Notes on pages 2-3/N/ante. This is regarding CS (COMM) No. 72/2018 filed by M/s LINTAS India Pvt. Ltd. against Prasar Bharati, seeking realisation of Rs.2,82,42,691/- plus interest thereon totaling Rs.3,80,87,166/- of unpaid dues from DD Kisan for the media campaign and publicity undertaken during the pre-launch and launch of DD Kisan channel.

2. In view of the complexity of the issues involved, assistance of Legal Expert, DG:DD, in drafting the response of Prasar Bharati in this case, was sought. In response, Legal Expert had opined that being a summary suit under Order-37 CPC for recovery of a particular amount, a different procedure is followed in the Court, wherein after receipt of summon from the court, the Respondent party is required to enter appearance within 10 days from receipt of summon. Hence, Legal Expert advised that the case may be immediately assigned to the Advocate of Prasar Bharati/Doordarshan for entering appearance. Further that the stage of preparation of a Leave to defend Application stating the defence on behalf of Prasar Bharati would be a subsequent stage after entering appearance of the counsel on behalf of Prasar Bharati.

3. In the light of advice of Legal Expert, the case papers have been delivered to Shri Rajeev Sharma, Standing Counsel of Prasar Bharati, on 04.04.2018, with the request to take further appropriate action in the matter. The date of hearing in the case has been fixed for 18.04.2018.

4. Shri Rajeev Sharma, Standing Counsel of Prasar Bharati had telephonically contacted the undersigned on 16.04.2018 and had asked that Vakalatnama in his name may please be furnished to ensure that Standing Counsel can appear before the Hon‘ble High Court in this case. Subsequently, he requested that all Files related to media campaign and publicity of DD Kisan undertaken by M/s Linstas, may be made available to him. Accordingly, three Files relating to Phase-II media plan and publicity of DD Kisan bearing No.CPC/DDK/DE/4(1)/2015-16; PB/ADG(O&L)/KC/2015/51 and CPC/DDK/DE/Bill Media Plan/2015-16 were handed over to Standing Counsel on 17.04.2018. Standing Counsel has further desired presence on 18.04.2018 viz. the date of hearing for filing an Affidavit on behalf of Prasar Bharati seeking condonation of delay in Appearance on behalf of Prasar Bharati and seeking time for filing of reply.

5. Since Shri A.P. Dubey, DD has reported in CPC:DD on 17.04.2018 and will be handling the work of DD Kisan, it would be appropriate if the Affidavit is signed by Shri A.P. Dubey, DD. Submitted please. DD(A). 17.04.2018.‖

23. Thereafter, as per the documents on record, the present application was filed on 18.04.2018 for condoning delay for entering appearance, seeking condonation of delay of 43 days in entering appearance.

24. Perusing the original record of the defendants and considering the submissions made before this Court, it cannot be said that the delay in entering appearance by the defendants was intentional or deliberate. The official dealing with the case initially did not seem to be aware of the technicalities involved in a summary suit under Order 37 CPC. Thus, when the legal expert of the defendants pointed out about the nature of the suit, immediate steps have been taken by the defendants in engaging a lawyer and for putting appearance before this Court. The present cannot be considered to be a case where the defendants can be attributed lack of bona fides or deliberate negligence of such a nature so as to disallow condonation of delay.

25. Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst Katiji and Others[1], held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserved to be preferred. Thus, Supreme Court held as follows:

“ 3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of

Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‖merits‖. The expression ―sufficient cause‖ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice — that being the lifepurpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: ―1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. ―Every day's delay must be explained‖ does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ―State‖ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the ―State‖ is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, filepushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression ―sufficient cause‖. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.‖

26. This Court in the case of Shyam Singh Khatri and Another Vs. M/s ICICI Home Financing Co. Ltd.[2] has held that the endeavour of the Court should be to see that recovery suits are not decreed on technical grounds, unless the delay is substantial and there is no explanation for the same. Thus, it has been held as follows:- ―3. It is therefore clear that there is undoubtedly delay in filing the appearance inasmuch as defendant was served on 8.11.2003 and appearance was filed on 27.2.2004 i.e. delay of about 3 months and 10 days. The defendant had also appeared earlier and taken inspection, and there seems to be some amount of confusion as to whether the suit was under Order 37 CPC or not. Though it cannot be said one way or the other with clarity as to the existence of confusion, however, the more important aspect is that endeavour of Court should be to see that recovery suits are not decreed on technical grounds unless the delay is substantial and there is no explanation for the same. The Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123: AIR 1998 SC 3222 has held that once an application is filed for condonation of delay obviously there has to be some amount of lapse or negligence, and which is why the delay occurs, however the Supreme Court has said that unless there is complete want of action or gross negligence delays must be condoned because a party does not want to act against his own interest by delaying the matter.‖

27. This Court while condoning delay in entering appearance in the case of HDFC Vs. Anil[3], held as follows:

“ 4. It is correct that under Order 37 of the Code, on receipt of summons in Form IV Appendix B the defendant is required to enter appearance within 10 days from the date of service of summons upon the defendant. But this Court can also not

2000 SCC Online Del 161 ignore the fact that when summons are received by a layman who has hardly appeared in Courts, he can be misled by the date which is mentioned on the summons. A perusal of the summon shows that the party was informed that the matter will be taken up by the Court on 20th July, 1999. No mala fides have been imputed to the defendant nor any reason has been shown as to why the defendant who wants to contest the suit would not enter appearance in case he was aware that on not filing appearance within 10 days decree will be passed against him. At best it can be a case of casual approach of the defendant to the whole matter. However, it cannot be said that the mistake on the part of the defendant in not entering appearance within 10 days was not bona fide. It can also not be said that by writing the date of 20th July, 1999 on the summons when the defendants were informed that the matter will be listed before the Joint Registrar, the defendant was not misled. In my view, therefore, there is sufficient cause for not entering appearance within time and a good cause has been shown for the delay in entering appearance. I accordingly allow this application subject to payment of Rs. 1,000/- as costs and condone the delay in entering appearance by the defendant. No further orders are required to be passed on this application and the same stands disposed of.‖

28. Similarly in the case of Babu Lal Yadav Vs. R.S. Yadav & Co. & Anr.4, while condoning the delay in entering appearance, this Court held as follows:

“17. In the present case, no mala fides have been imputed to the respondents nor has any reason been shown as to why the respondents would not want to contest the suit. In case they were aware of the fact that in the event of their failure to appear within ten days, a decree would be passed against them. It can also not be said that the mistake on the part of the respondents for not entering appearance within ten days. Was not bona fide. The

2010 SCC OnLine Del 789 explanation offered by the respondents in their application was that they were unaware of the technicalities involved in a summary suit and contacted his counsel only two days prior to the date fixed before the Court. The counsel filed his vakalatnama on the said date. The learned Additional District Judge has accepted the explanation offered by the respondents as 'sufficient'. The trial court having so exercised its discretion in favour of the respondents, this court is not inclined to disturb such a finding as the exercise of discretion by the trial court has not been assailed on the ground that it is wholly untenable or so adverse or arbitrary that it cannot stand. Rather, a perusal of the impugned order shows that the trial court has duly taken into consideration the fact that no formal application for appearance was filed by the respondents. though the application for seeking condonation of delay was filed and thus, the delay was condoned, subject to payment of costs of Rs.1,000/-.‖

29. In the case of Hector M. Mehta Vs. CRB Capital Markets Ltd. & Ors.[5] where the defendant/official liquidator had contended that there was delay in entering appearance because the summons and the copy of the plaint got mixed up with the cases filed by the defendant before the company court, this Court condoned the delay of almost 1 year in entering appearance. Thus, it was held as follows:

“5. In the instant case, though the delay is almost of one year, but in the stated facts no mala fides can be attributed for the delay nor the delay can be treated as deliberate by way of a dilatory strategy. In the given facts of the case, it should not be overlooked that refusal to condone the delay would result in foreclosing the defendant from putting forth his defence. In the peculiar facts of this case, I find that the explanation for condoning the delay is neither deliberate nor malafide. There is sufficient cause for

2002 SCC OnLine Del 512 condoning the delay in filing the appearance. The delay is accordingly condoned and the appearance of defendant No. 1 through the Official Liquidator is taken on record.‖

30. In the present case, it is clearly submitted on behalf of the defendants that the functionaries of the defendants who received the summons in the suit were completely unaware of the provisions of Order 37 CPC. Perusal of the original file produced before this Court does not in any manner indicate any want of bonafides on behalf of the defendant in putting appearance before this Court. Rather, reading of the original file of the defendant manifests that immediate action was taken by the defendant for putting appearance before this Court when the legal position was brought forth by the legal expert of the defendant. It is also pertinent to note that the defendant would not benefit or profit in any manner by not entering appearance within 10 days. On the contrary as held in various judgments, not contesting the suit would have grave repercussion for the defendant, as the same would result in default decree being passed against the defendant.

31. Supreme Court in the case of Sesh Nath Singh and Another Vs. Baidyabati Sheoraphuli Co-operative Bank Limited and Another[6], has held as follows:

“60. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hypertechnical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The

2021 SCC OnLine SC 244 courts are required to strike a balance between the legitimate rights and interests of the respective parties.‖

32. While defining the contours of condonation of delay, Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy[7], has held as follows:

“13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor...........‖

33. In view of the aforesaid discussion, present application is allowed. Delay of 43 days in entering appearance is condoned subject to payment of costs of Rs.30,000/- to the plaintiff.

34. List before the Roster Bench on 10.02.2023.

JUDGE JANUARY 18, 2023 PB/au/c

M/S Lintas India Pvt. Ltd. v. M/S Prasar Bharti

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