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2006 DIGILAW 1470 (DEL)

BANK OF BARODA v. NEERAJ AGGARWAL

2006-08-28

SANJAY KISHAN KAUL

body2006
( 1 ) 1. Admit. ( 2 ) AT request of learned Counsel for the parties, the petition is taken up for final disposal. ( 3 ) THE petitioner filed a suit under the provisions of Order 37 of the Code of civil Procedure, 1908 (hereinafter to be referred to as 'the Code') for recovery of amounts advanced by the petitioner bank to the respondent. The summons were served in the prescribed form on the respondent and the respondent filed the address of service. Thus, on 25. 10. 2005, it was directed that the petitioner would take necessary steps for issuance of summons of judgment. The petitioner failed to take the said steps and when the matter was listed on 13. 12. 2005 one further opportunity was granted for the said purpose and the case was re-notified for 28. 1. 2006. On 28. 1. 2006, the Trial Court noted that no summons of judgment had been issued and dismissed the suit for non-prosecution. ( 4 ) THE case of the petitioner is that the Counsel got delayed due to technical snag in the car and appeared at 10. 40 a. m. when it was found that the suit had been dismissed on the first call itself. The summons for judgment were supported by an affidavit attested on 28. 1. 2006 itself, but the application filed by the petitioner for recall of the order was also dismissed. ( 5 ) IN my considered view, the Trial Court followed the wholly improper procedure for more than one reason. Normally, if none was present for the parties on the first call, the Trial Court ought to have passed over the matter before the adverse order of dismissal of the suit was passed. This was not done and even when the Counsel appeared on the same date and moved the application, the Trial Court failed to exercise the jurisdiction to recall the order. It may also be noticed that dismissal of the suit is contrary to the procedure of Order 37 of the Code itself. If the petitioner had failed to file an application for issuance of summons of judgment, all that the Trial Court could have done was to grant leave and treat the suit as an ordinary suit. Instead of the same, the Trial Court dismissed the suit. If the petitioner had failed to file an application for issuance of summons of judgment, all that the Trial Court could have done was to grant leave and treat the suit as an ordinary suit. Instead of the same, the Trial Court dismissed the suit. ( 6 ) IN my considered view, the impugned order suffers from a patent error and the failure of the Trial Court to exercise jurisdiction vested in it by law. The impugned order is set aside and the suit is restored to its original number. The Trial court is directed to take due care in future in such matters in view of the observations made in this order. ( 7 ) THE parties to appear before the Trial Court on 29. 9. 2006 for further directions. ( 8 ) THE petition stands disposed of leaving the parties to bear their own costs. Petition disposed of.