Mrs. Sunita Jaiswal and Others vs Bagga Millennium Liquor India Pvt. Ltd.

Reva Khetrapal, J.—The plaintiffs in the present case seek a decree against the defendant, M/s. Bagga Millennium Liquor India Pvt. Ltd. upon the said defendant failing to comply with the condition of leave to defend imposed by this Court by its order dated 13.09.2011. The present suit has been instituted by the plaintiff No. 1, Mrs. Sunita Jaiswal on behalf of herself and on behalf of her two minor children (Plaintiff Nos. 2 and 3) and her mother-in-law, Smt. Alka Jaiswal (Plaintiff No. 4). Mrs. Sunita Jaiswal, the plaintiff No. 1 is the widow of Shri Dushant Jaiswal, who was the sole proprietor of M/s. Bodega S & M and as such he had executed a contract with the defendant, which is the subject matter of the present suit filed by the plaintiffs, upon his demise in a road accident.

Summons of the institution of the suit were served upon the defendant, who filed an application for leave to defend the suit, being IA No. 1030/2011. In the said application, it was, inter alia, contended by the said defendant that no concluded contract had come into existence, in that the letter dated 6th July, 2005 relied upon by the plaintiffs was merely in the nature of an offer to Shri Dushant Jaiswal and no acceptance having been communicated, the contract had not come into existence, as alleged or at all. It was also sought to be contended that the Court at Delhi had no territorial jurisdiction to entertain the suit.

On the aforesaid pleas, detailed arguments were addressed by the parties, which were dwelt upon at length by my learned predecessor (Hon''ble Ms. Justice Gita Mittal). After considering the respective contentions of the parties, the Court concluded that so far as the consideration of the defendant''s prayer for grant of leave to defend was concerned, other than the objection of want of territorial jurisdiction, there was no real defence on the merits of the case. This conclusion was arrived at by the Court after noting that the plaintiffs do not merely rely upon entries in the books of accounts of the defendant but on the specific letter of confirmation, which was sent by the defendant in answer to the plaintiff''s letter dated 17th June, 2006 calling upon the defendant to clear the outstanding and informing the defendant about the service tax deposits, which remained outstanding. The Court noted that the defendant does not dispute the account position set out by the plaintiff in the letter dated 17th June, 2006 in its reply dated 23rd June, 2006; the defendant in fact confirmed the security deposit of Rs. 60,00,000/- received from the plaintiff as well as expenses to the tune of Rs. 13,86,785/-. The Court accordingly concluded that given the unconditional acknowledgement of the amounts owed to the plaintiff by the defendant and also the fact that there is no defence at all on the merits of the case, the defendant in the instant case deserved to be granted only conditional leave to defend. Accordingly, it directed as follows:

(i) the defendant is granted conditional leave to defend subject to the depositing an amount of Rs. 1,00,000/- within a period of four weeks with the Registrar General of this court. The same shall be kept in a fixed deposit receipt initially for a period of six months to be kept renewed till further orders of this court.

(ii) At this stage, learned counsel for the defendant submits that the defendant may be permitted a period of two months to make the deposit. It is so permitted.

(iii) The plaintiff is granted liberty to move this court for release of the amount which shall be considered in accordance with law as and when the deposit is received.

The application is allowed in the above terms.

It emerges from the record that subsequently, on December 19, 2011, the Joint Registrar in his order recorded that as the defendant was seeking some more time to deposit the amount on which conditional leave to defend had been granted to the defendant, it would be expedient if the matter was placed before the Court. Accordingly, the matter was listed before the Court on January 24, 2012 and again on February 08, 2012.

On both the aforesaid dates, none appeared on behalf of the defendant. On February 08, 2012, the case was again adjourned to March 07, 2012 when the following order was passed:-

In the present case, defendant was granted conditional leave to defend the suit subject to depositing an amount of Rs. 1 crore within a period of four weeks from the date of the passing of the order dated September 13, 2011 with the Registrar General of this court. Till date the aforesaid amount has not been deposited. The counsel for the defendant seeks one last opportunity for depositing the same. The amount be deposited latest within two weeks from today, failing which the suit is liable to be decreed.

List on 30th March, 2012.

On March 30, 2012, the counsel for the defendant again sought time to deposit the amount, to which the plaintiff''s counsel did not object and at the joint request of the counsel for the parties, the case was adjourned to 16th April, 2012. On 16th April, 2012, however, none appeared on behalf of the defendant despite being awaited nor any application was filed by the defendant seeking extension of time. This, despite the fact that by order dated March 07, 2012, it had been directed that the amount be deposited latest within two weeks from the said date, failing which the suit was liable to be decreed.

Learned counsel for the plaintiffs submits that the defendant had been granted four weeks'' time to deposit the amount of Rupees 1 crore subject to which leave to defend had been granted to the defendant, which time period on the request of the defendant was extended by the Court by permitting the said deposit to be made within a period of two months. The period of two months expired on November 12, 2011. Thereafter from time to time, the defendant has been shown indulgence by the Court by grant of time to him. However, by order dated March 07, 2012, it was made amply clear to the defendant that in case the conditional deposit was not made by him latest within two weeks from the said order, the suit would be decreed. Notwithstanding, on the next adjourned date the plaintiff had agreed on the request of the counsel for the defendant for further extension of time till 16th April, 2012. However, the conditional deposit has not been made by the defendant till date. It is, thus, more than evident that the defendant has no intention of making the aforesaid deposit and, therefore, the counsel submits, this is a fit case for passing of a decree in terms of the prayer made in the suit.

Order XXXVII Rule 3 (6)(b) provides that if the defendant is permitted to defend the suit, the Court may direct him to give such security and within such time as may be fixed by the Court and that on his failure to give such security within the time specified by the Court or to carry out such other directions as may have been given by the Court, the plaintiff shall be entitled to judgment forthwith. In the present case, the defendant having been granted conditional leave to defend the suit and the condition not having been complied with by the defendant within the stipulated period and even thereafter, leave to defend must be deemed to have been refused to the defendant and the plaintiff entitled to the decree, as prayed.

In the light of the aforesaid, the plaintiff is held entitled to a judgment forthwith keeping in view the averments made in the plaint and the documents, including the letter of confirmation relied upon by the Court while granting conditional leave to defend to the defendant. Accordingly, the suit is decreed in favour of the plaintiffs and against the defendant for a sum of Rs. 1,03,60,165/- together with pendente lite interest at the rate of 15% per annum from the date of the institution of the suit till date, that is, April 16, 2012 and future interest at the rate of 15% per annum from April 17, 2012 till the date of realization together with cost. CS(OS) No. 2584/2008 stands disposed of in the above terms.