Neeti Aggarwal vs M/S Top Runners Impex Pvt Ltd & Ors

Prathiba M. Singh, J

The present petition has been filed challenging the impugned order dated 28th August, 2019 by which the Trial Court has taken the leave to defend

on record and has condoned the delay in filing the same.

The Petitioner/Plaintiff (hereinafter ‘Plaintiff’) filed a suit seeking recovery of a sum of approximately Rs.13 lakhs. Summons were issued in

the suit under Order XXXVII CPC. Thereafter, the Defendants entered appearance as per the prescribed timelines. The Plaintiff then moved an

application under Order XXXVII Rule 3(4) CPC seeking issuance of summons for judgment and on 24th November, 2018 the Court issued

summons/notice in the said application.

The Plaintiff thereafter moved an application for pronouncement of judgment under Order XXXVII Rule 2(3) CPC. Along with the said application,

various tracking reports, courier receipts etc. were annexed to show how the summons for judgments were, in fact, served upon the Defendants. The

Defendants, thereafter, moved an application under Order XXXVII Rule 3(5) CPC seeking leave to defend. The Plaintiff has taken the stand that the

leave to defend is beyond the time period fixed under Order XXXVII CPC. By way of abundant caution, the Defendants moved an application

seeking condonation of delay without prejudice to its rights. The Trial Court considered the two applications and vide the impugned order, condoned

the delay in filing the leave to defend application. The leave to defend application is now pending for disposal before the Trial Court.

Ld. counsel for the Plaintiff submits that there are no reasons given to justify condonation of delay. The Defendants were served on 7th January

2019, 9th January 2019 and 11th January, 2019. Thus, the date of service being taken by the trial court as 29th January, 2019 would be completely

incorrect. He relies upon the annexures of the application under Order 37 Rule 2(3), which were filed by the Plaintiff in support of the fact that the

delivery of the summons for judgment is clearly demonstrated from the courier receipts and tracking report. He further submits that no reasonable

explanation has been given for condonation of delay of 20 days in filing the leave to defend.

Ld. counsel for the Defendants, on the other hand, submits that the application and the annexures thereof filed by the Plaintiff do not show as to

who had taken the delivery of the documents, which were purportedly sent by courier. In any event, the leave to defend was filed on 7th February,

2019. The Defendants’ counsel was served with the summons for judgment only on 29th January, 2019 by the Plaintiff. Accordingly, the leave to

defend was within time. In any event, he submits that the delay, if any, is condonable for the reasons stated in the application. He relies upon the

following judgments:

(i) Commissioner of Income Tax v Eqbal Singh Sindhana 2008 (304) ITR 177

(ii) Rajesh Bansal v Ansal Housing Construction Limited AIR 2002 Del 214

(iii) Goyal MG Gases Ltd. v Premium International Finance Ltd. 2007 (138) DLT 259

The Court has perused the orders of the trial court. Till the stage of filing of summons for judgment, there is no dispute as to the facts. However,

coming to the leave to defend, the same has also admittedly been filed on 7th February, 2019. The earliest date, which according to the Plaintiff, was

the date when the Defendants were served was 7th January, 2019 and the Defendant had 10 days for filing the leave to defend, which expired on

18th January, 2019. There was delay of approximately 20 days in filing the leave to defend, even going by the earliest date when the courier is stated

to have been received. Thus, it cannot be stated that the Defendant had unduly delayed the filing of the leave to defend application. The Defendant

has also stated adequate reasons in the application for condonation of delay, inasmuch as it is the Defendant’s case that service actually took

place on 29th January, 2019. The tracking reports do not show as to exactly who was served with the application. The application for condonation of

delay has been filed without prejudice to the rights of the Defendant. The sum, for which the recovery is sought, is quite substantial and accordingly,

owing to the dispute as to the date of service and considering that at best the delay is of 20 days, this Court is inclined to condone the delay in filing the

leave to defend, subject to costs of Rs.20,000/-, which shall be paid to the Plaintiff on the next date before the Trial Court.

The petition along with the pending applications is disposed of in the above terms.