Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 1454 (DEL)

S. A. BUILDERS PVT. LTD v. M. C. D.

2007-07-23

VIPIN SANGHI

body2007
VIPIN SANGHI, J, J. ( 1 ) BY this order I propose to dispose of Interlocutory Application no. 5278/2005 moved under Order 9 Rule 13 read with section 151 of the Code of civil Procedure for setting aside the judgment and decree dated the first of march 2005 passed in C. S. (OS) No. 1900/1996. ( 2 ) THE said suit was filed by M/s. S. A. Builders for making the arbitral award dated 28th of June 1996 a Rule of the court under the Arbitration act 1940. The applicant herein had filed their objections against the said award within the limitation period. While the matter was ripe for hearing and was being shown on the regular board, none appeared on behalf of the applicant when the matter was taken up on 1st March 2005 and the Court decided the matter ex parte. The objections filed by the applicant came to be dismissed and the decree was ordered to be drawn up in favour of the plaintiff. ( 3 ) THEREAFTER, the decree holder preferred an execution application being EA No. 75/2005. Notice of the filing of the said execution petition was received by the applicant during the summer vacations of 2005. ( 4 ) THE present application has been filed along with an application for condonation of delay under section 5 of the Limitation Act being IA no. 5280/2005 on the ground that the Counsel for the applicant was not seized of the matter when the decree was passed. ( 5 ) IT is averred that after the counsel earlier handling the matter was elevated to the bench, the matter was being conducted by the counsel now on record. However, bearing in mind the substantial stakes involved in the matter, the matter was returned along with the case file on 21st of February 2005 by the clerk upon the counsel"s instruction to the applicant department for engaging some other senior counsel. The department, keeping in mind the fact that the present counsel had been assisting the earlier counsel and was well versed with the facts of the case returned the file to the present counsel with instructions to brief a designated senior. A letter to this effect dated 21-2-2005 showing subsequent markings and notings has been filed along with the application. The department, keeping in mind the fact that the present counsel had been assisting the earlier counsel and was well versed with the facts of the case returned the file to the present counsel with instructions to brief a designated senior. A letter to this effect dated 21-2-2005 showing subsequent markings and notings has been filed along with the application. It is further averred that the file was returned to the present counsel with these instructions, on 17th of March 2005. ( 6 ) HOWEVER the matter had already been decided by the time the file was returned with adequate instructions. Unaware of this fact, the office of the counsel for the applicant kept a careful eye on the cause list from the date the file was returned. The court records pertaining to the case were however not inspected by the counsel. This was due to an unintentional bonafide mistake on part of the counsel. The applicant was therefore unaware of the fact that the objections filed by it already stood dismissed and a decree passed in the aforesaid suit. It was only when the notice of the filing of the execution petition was received by the applicant, the applicant became aware of the passing of the said decree. ( 7 ) THE applicant attempted to contact the office of the counsel who is stated to have been traveling at the relevant time. As the courts were closed on account of vacations, the counsel tried to search for the orders on the internet. However the same were not available online. Thereafter the instant application has been filed at the earliest possible opportunity without any delay. ( 8 ) IT is also urged that the earlier counsel had considerably argued the matter though not concluded the same before the court, no cognizance has been taken of this fact in the order sought to be set aside. Since the order levies a huge financial liability on the department/applicant running into crores, it is prayed in the interests of justice that the bonafide mistake of the counsel and the applicant ought not to be permitted to defeat the legitimate objections of the applicant. ( 9 ) ON these averments the judgment dated 1 March 2005 is sought to be set aside. ( 10 ) REPLIES to these applications have been filed by the plaintiff/non-applicant opposing the same. ( 9 ) ON these averments the judgment dated 1 March 2005 is sought to be set aside. ( 10 ) REPLIES to these applications have been filed by the plaintiff/non-applicant opposing the same. It is contended that the conduct of the applicant/its counsel is not merely a bonafide mistake but constitutes gross negligence. It is also contended that the objections were not dismissed in default but have been considered on merits by the Hon'ble Court and therefore no intervention is called for with the judgment dated 1st March 2005. Sufficient cause has not been shown for condonation of delay and as well as for allowing the application under Order 9 Rule 13 CPC. ( 11 ) IN my view the objections raised by the non-applicant are without any substance and liable to be rejected. It is fallacious to contend that since the order has been passed on merits, therefore, it cannot be set aside under Order 9 Rule 13 CPC. Unlike Order 9 Rule 8 read with Order 9 Rule 9 cpc, wherein the suit is dismissed on account of default and not on merits, order 9 Rule 6 read with Order 9 Rule 13 CPC contemplate passing of a decree upon consideration of the allegations made in the plaint. [see Mulla, The Code of civil Procedure (abridged), Thirteenth Edition, at 783, 787] An ex parte decree is therefore a decree passed after consideration of the merits of the case. ( 12 ) IN my view sufficient cause has been disclosed by the applicant for the condonation of delay as well as for the setting aside of the judgment/decree dated 1st March 2005. ( 13 ) IT is evident that the file of the case has been returned by the then counsel to the Respondent by the communication dated 21st February 2005 and when the matter was taken up by the court on the 1st March 2005, there was no advocate on record to represent the cause of the Respondent/objector. The file was returned back by the Department to the counsel on 17th March 2005 and in the meantime on 1st March 2005 the matter came to be decided in the absence of the Respondent. The file was returned back by the Department to the counsel on 17th March 2005 and in the meantime on 1st March 2005 the matter came to be decided in the absence of the Respondent. Having returned the file the then counsel did not feel obliged to track the matter in the cause list and it appears that the Respondent also could not fathem the time within which the matter, which was at Item No. 8 in the final's list, would reach for hearing before the court. ( 14 ) THE award in question is to the tune of Rs. 45 lakhs apart from interest and the prejudice that would be caused to the Respondent in case the present applications are dismissed would be substantial, while allowing these applications would only enable the parties to present their respective arguments before the court in respect of the challenge to the award. ( 15 ) IN the interest of justice, therefore, I allow the aforesaid applications subject to payment of costs of Rs. 5,000/ -. The judgment and order dated 1st March 2005 is set aside and the suit and the objections to the award are restored to its original number. The objections to the award be listed for hearing on 11th December, 2007.