Gujarat High Court Case Information System
Print
SCA/4667/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4667 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PEPSICO
INDIA HOLDINGS PVT LTD - Petitioner(s)
Versus
MONSLIADS
THROUGH RAJENDRA R SHAH - Respondent(s)
=========================================================
Appearance
:
MS
ROOPAL R PATEL for
Petitioner(s) : 1,
MR MTM HAKIM for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 16/04/2010
ORAL
JUDGMENT
Petitioner
is the original defendant. Respondent herein had filed summary suit
seeking recovery of sum of Rs.2,86,979/- plus interest of
Rs.51,656/- from the defendant. In the summary suit The petitioner
had moved an application before the learned Civil Judge (S.D.), on
12.12.01 contending, inter alia, that summons was not duly served as
per the provisions of the Code of Civil Procedure. The summons
issued was not served either to the Secretary of the Company or to
any responsible Director thereof. It was, therefore, prayed that
the plaintiff be directed to serve the summons on the defendant.
This application came to be rejected by the Trial Court by the order
dated 18.10.02 holding that there is no reason to discard the
endorsement of the bailiff that summons has been served on the
responsible officer of the Company. This order was never
challenged by the petitioner and achieved finality.
In
absence of appearance by the defendant within the time permitted
under Order 37, the Trial Court had no occasion to consider
granting of conditional or unconditional leave to defend.
Eventually, therefore, the Trial Court by the impugned order dated
29.9.03 decreed the suit in favour of the plaintiff and permitted
the plaintiff to recover Rs.2,86,979/- from the defendant with
interest at the rate of 6% per annum from 1.8.99 till realization.
At
this stage, the petitioner approached this Court by way of present
petition. It is not in dispute that in absence interim order,
during the pendency of the petition, decree has been executed and
the amount already paid over by the petitioner.
Counsel
for the petitioner submitted that in absence of due service of
summons, the decree be set aside and since the amount is already
lying with the defendant, no prejudice would be caused. She
contended that execution of the decree was subject to outcome of the
petition.
On
the other hand, learned advocate Shri Hakim for the original
plaintiff opposed the petition contending, inter alia that admittedly
appearance was not filed on behalf of the defendant within the time
permitted under Order 37, recourse to sub-rule 7 of rule 3 of Order
37, therefore, is not permissible in absence of any application for
condonation of delay.
Having
thus heard the learned advocates for the parties, I find that though
under sub-rule 7 of rule 3 of Order 37 of the Code of Civil Procedure
discretion lies with the Trial Court to permit appearance of
defendant beyond the prescribed period, in the present case,
admittedly no application for condoning the delay was filed. No
order obviously therefore was passed.
Apart
from the above, the case of the petitioner original defendant appears
to be that summons was not served at all. However, this contention
has been categorically turned down by the Trial Court by its order
dated 18.10.02. This order was never challenged and it achieved
finality. In face of this factor, there was no scope for the
petitioner to avoid decree. The same was eventually passed in favour
of the plaintiffs. In the circumstances, I see no reason to
interfere. The petition is therefore dismissed. Rule is discharged.
(Akil
Kureshi, J.)
(vjn)
Top