* HIGH COURT OF DELHI : NEW DELHI
FAO No.398/2008
% Judgment reserved on: 4th November, 2009
Judgment delivered on:9th November, 2009
Baldev Raj Arora,
S/o Late Sh. G. D. M. Arora,
R/o Flat No. 209, Divya Jyoti Apartment,
Sector-19, Pocket-C,
Rohini, Delhi-85.
....Appellant
Through: Mr. Kundan Kr. Mishra with Mr.
Ashish Kr. Bhagat , Adv.
Versus
Modex International Securities Ltd.
Having its registered office at 507,
Padama Tower, II 22 Rajendera Place,
New Delhi.
....Respondent.
Through: Mr. Aseem Mehrotra, Adv.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
FAO No.398/2008 Page 1 of 6
V.B.Gupta, J.
This appeal has been filed against order dated 3rd October, 2008, passed by
Additional District Judge, Delhi, vide which application under Order 9 rule 13 of
Code of Civil Procedure (for short as „Code‟) filed by the appellant, was
dismissed.
2. Brief facts of this case are that, respondent filed a suit for recovery of Rs.
5,04,817.45/- along with pendente lite and future interest against appellant.
Initially appellant put in its appearance in the trial court on 29th November, 2004.
Thereafter, on 3rd January, 2005, he absented and as such was proceeded ex parte.
Appellant then filed an application under Order 9 Rule 7 of the Code, which was
allowed subject to payment of costs. Appellant again absented and vide order
dated 20th September, 2006, he was proceeded ex parte. Trial court decreed the
suit, vide judgment dated 28th September, 2006.
3. In the present application it is stated that after framing of issues, appellant
was approached by the respondent for out of court settlement. Appellant was
persuaded emotionally as well as by giving references of earlier friendship and
families tie up for not to contest as it would ensue no good for either party. In
consequence of these re-conciliatory efforts, appellant agreed for compromise.
Going by the commitment made by respondent, appellant became convinced and
stopped coming to the Court in honest and bonafide belief of the fact that the
matter was compromised.
4. However, respondent committed serious betrayal and defrauded the
appellant and in contrary to their commitments, pressed the court for ex parte
FAO No.398/2008 Page 2 of 6
proceeding. Appellant was prevented by sufficient cause from appearing in Court
and therefore could not attend the proceedings on the crucial stages. There are
special and reasonable circumstances in the matter, which entitle the appellant for
setting aside the decree passed in this case.
5. It is contended by learned counsel for appellant that after framing of the
issues, appellant was approached by the respondent for out of court settlement.
Appellant also agreed for the compromise. In view of the commitments made by
the respondent, appellant stopped coming to the Court in bonafide belief that
matter has been compromised and thus appellant was prevented by sufficient
cause, from appearing in the Court. Even on merits, respondent has no case and
his execution application filed in the trial court has also been dismissed in default.
6. On the other hand, it is argued by learned counsel for respondent that story
put forward by appellant is not at all convincing. There was no settlement at all
between the parties. Appellant absented from appearing in the Court, without any
just and sufficient cause. In support learned counsel for respondent cited
decision of this Court; Mrs. Naimat Kaur Anand & Ors. Vs. M/s Decond
Comapnay, 82 (1999) Delhi Law Times 389.
7. Appellant was duly served and had put in its appearance before the trial
court. He also filed the written statement. Issues were framed in the presence of
appellant. Later on, appellant stopped appearing and thus, was proceeded ex parte
on 20th September, 2006. Explanation given by appellant for non appearing in the
Court on 20th September, 2006 and for subsequent hearings is that after framing
FAO No.398/2008 Page 3 of 6
of issues appellant was approached by the respondent for out of court settlement
and in consequence thereof, appellant agreed for compromise.
8. In entire application it is no where stated as to on which date settlement
took place, what were the terms of settlement, whether the settlement was effected
in writing or orally. Application under Order 9 rule 13 of the Code, with regard to
all these relevant facts is completely silent. The explanation given by appellant
for non-appearance in Court on 20th September, 2006 and subsequent there to, is
not at all convincing. In this regard, the trial court observed that;
“The defendant/applicant admitted in his application under
Order 9 rule 13 CPC that he had stopped appearing in court
after 20.09.06. The present application for setting aside of
the decree has been moved on 24.12.07. The
defendant/applicant is required to give an explanation for
his non appearance for each day from 20.09.06 to 24.12.07.
No such explanation is forthcoming. The application under
Order 9 Rule 13 CPC which is under consideration is not
even accompanied by an affidavit. No application under
Section 5 of the Limitation Act for condonation of delay
has been moved. The story put forth by the
defendant/applicant is totally incredible that he stopped
appearing in court at the behest of the plaintiff.”
9. Application for setting aside of ex parte decree, was filed by appellant
only on 24th December, 2007, that is after about fifteen months from the date of
passing of ex parte order. No application for condonation of delay was filed.
10. In Mrs. Naimat Kaur Anand (Supra), it was observed:
“The negligence and delay does not end here. Section 123
of the Limitation Act prescribes that the application for
setting aside a decree should be filed within thirty days of
its passing. This position must have been known to the
defendant when the application under Order 9, Rule 13 was
filed. Although one year and forty nine days had passed (as
per the computation of the defendant) the application underFAO No.398/2008 Page 4 of 6
Section 5 of the Limitation Act did not accompany the
application under Order 9, Rule 13 and this must be held to
be fatal to the case put forward by the defendant/judgment
debtor.”
11. In entire application for setting aside ex parte decree, appellant nowhere
stated as to on which date and from whom he came to know about passing of ex
parte decree. The application is completely silent about these material facts.
Merely, application for execution of decree filed by respondent has been
dismissed in default, will not have any bearing on the present appeal.
12. Respondent had filed the suit for recovery against appellant in the year
2002. The same was decreed on 28th September, 2006. Now we are in year 2009.
For last many years, respondent is being deprived of the fruits of the decree.
Appellant has taken the court proceedings in very casual manner and has not
bothered to vindicate his stand.
13. In Ravinder Kaur Vs. Ashok Kumar and Anr., (2003) 8 Supreme Court
Cases 289, it was observed;
“Courts of law should be careful enough to see through
such diabolical plans of the judgment debtors to deny the
decree holders the fruits of the decree obtained by them.
These type of errors on the part of the judicial forums only
encourage frivolous and cantankerous litigations causing
laws delay and bringing bad name to the judicial system”.
14. In view of above discussion there is no ambiguity or illegality in the
impugned order. Present appeal is most bogus and frivolous one and has been
filed just to delay the proceedings. Appellant to a certain extent has succeeded in
delaying the execution of decree for last many years. Present appeal is, therefore,
dismissed with costs of Rs. 20,000/- (Twenty Thousand Only).
FAO No.398/2008 Page 5 of 6
15. Appellant is directed to deposit the costs with Registrar General of this
Court within one month from today, failing which the same shall be recovered in
accordance with law.
16. Trial court record be sent back.
17. List for compliance on 14th December, 2009.
9th November , 2009 V.B.GUPTA, J.
bhatti
FAO No.398/2008 Page 6 of 6