JUDGMENT
Sharda Aggarwal, J.
1. This order shall dispose of defendant No. 1’s two
applications being IA. 822/02 under Order 37 Rule 2 CPC
for filing appearance and IA. NO. 823/02 under Section 5 of
the Limitation Act read with Order 37 Rule 3(vii) CPC for
condensation of delay in filing the appearance.
2. Defendant No. 1 was served with summons of the
suit under Order xxxvII CPC on 25th August, 2000. These
summons were served through the Official Liquidator as
the defendant No. 1 company had gone in liquidation and
the Official Liquidator was appointed as the Provisional
Liquidator of the Company. The Official Liquidator
entered his appearance through counsel Shri S.C. Sharma,
Advocate on 3rd August, 2001. The reason for condoning
the delay in filing the appearance is that summons and
the copy of the plaint got mixed up with huge and
voluminous cases filed by the company which were pending
in the Company Court. It is submitted that the delay is
inadvertent and unintentional. The plaintiff has opposed
the application for condensation of delay on the ground
that the application is mis-conceived, not bonafide and
does not disclose any ground or sufficient cause for
condoing the delay. It is vehemently contended that the
reason for condoning the delay that the summons and the
copy of the plaint were got mixed with the voluminous
records of the defendant Company lying with the Official
Liquidator cannot be taken as a sufficient ground for
condoning the long delay of more than one year. It is
also contended that though it is stated that appearance
was filed on 3rd August, 2001 but application for entering
appearance Along with the affidavit has been filed on 23rd
November, 2001.
3. No doubt the defendant No. 1 through Official
Liquidator has filed appearance much beyond the period of
ten days from the date of service of summons, but it is
not disputed that defendant No.1 Company had gone into
liquidation and the Official Liquidator, attached to
Delhi High Court, has been appointed as the Provisional
Liquidator of the said Company by the orders of the
Company Court dated 22nd May, 1997 in CA.No. 1737/97 in
CP. No. 191/97. The plea raised by the learned counsel for
the defendant is that the delay in filing the appearance
by the Official Liquidator was not intentional and
deliberate. Contention is that, in fact there was no
reason that the Official Liquidator would have
deliberately delayed in filing the appearance. It is
submitted that large number of creditors are involved in
liquidation of the defendant Company and number of cases
which were filed against them are pending in the Company
Court. The summons and the copy of the plaint got mixed
up in the voluminous records of the cases pending against
the defendant Company and that was the reason that the
Official Liquidator could not file appearance within the
requisite time.
4. As per the provisions of Order xxxvII Rule 3
sub-rule 7 CPC, the Court may excuse the delay in
entering appearance for sufficient cause shown by the
defendant. The words “sufficient cause” though have not
been defined but have been interpreted by the Supreme
Court in a catena of judgments in reference to Section 5
of the Limitation Act. It is held in a number of
judicial pronouncements that the words “sufficient cause”
should be liberally construed so as to advance
substantial justice. The Supreme Court in , N. Balakrishnan v. M. Krishnamurthy held that in the
absence of anything showing malafides or deliberate delay
as a dilatory tactic, Court should normally condone the
delay. It has also been held that length of delay is not
material, acceptability of the explanation is the only
criterion as sometimes delay of the shortest range may be
uncondonable due to want of acceptable explanation
whereas in certain other cases, delay of a very long
range can be condoned as the explanation thereof is found
satisfactory. It is held that there is no presumption
that delay in approaching the Court is always deliberate.
5. In the instant case, though the delay is almost
of one year, but in the stated facts no malafides 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 defense. 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 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.
6. The applications are accordingly disposed of.