JUDGMENT Sanjay Karol, Judge Plaintiff-Himachal Pradesh State Industrial Development Corporation Ltd. (respondent in the present applications), herein after referred to as the plaintiff, filed Civil Suit No.18 of 2004 against M/s Napa Papers Ltd. (defendant No.1), Dr. Pyush Agarwal (defendant No.2) and Dr. Neelam Agarwal (defendant No.3), herein after referred to as the defendants. Defendants No.2 and 3 are the Directors of defendant No.1. 2. This Court vide judgment and decree dated 22.12.2006 decreed the suit for a sum of Rs. 25,53,450/- against the defendants, alongwith interest at the rate of 18.5% per annum. 3. For the purpose of execution, the decree was transferred to the High Court of Calcutta. On 18.10.2009, Advocate appointed by the defendants approached the plaintiff vide communication/FAX (Ex. RC), expressing their desire for one time settlement of the outstanding dues of the plaintiff. The said Advocate also wrote letters dated 17.11.2009 (Ex. RA) and 25.11.2009 (Ex. RB). 4. In execution proceedings, a Receiver was appointed by the High Court of Calcutta. Certain articles belonging to defendants No.2 and 3 were taken into possession. At that point in time, representatives of defendants No.2 and 3 were present. This was so done between October, 2009 and January, 2010. 5. Subsequently, in the Civil Suit, on 22.4.2010, defendants filed application, being OMP No.202/2010, inter alia, pleading that they “came to learn about the said exparte decree some time in the first week of February, 2010. Your petitioner got to know of the said exparte decree after your petitioner was handed over a copy of the letter dated 21st October, 2009 by your petitioner’s erstwhile Advocate-on-Record, Ms. Kanchan Jaiswal” and they were not aware of the proceedings and that the plaintiff deliberately mentioned incorrect address of the applicants as “46D, Fafi Ahmed Kidwai Road, Kolkata-700016”, whereas the correct address is “44D, Rafi Ahmed Kidwai Road, Kolkata-700016” and thus obtained ex-parte decree by fraud. Kanchan Jaiswal” and they were not aware of the proceedings and that the plaintiff deliberately mentioned incorrect address of the applicants as “46D, Fafi Ahmed Kidwai Road, Kolkata-700016”, whereas the correct address is “44D, Rafi Ahmed Kidwai Road, Kolkata-700016” and thus obtained ex-parte decree by fraud. In effect the defendants wanted decree dated 22.12.2006, passed by this Court, to be set aside, praying for the following reliefs: a) Delay in filing the application be condoned; b) The judgment and/or decree dated 22nd December, 2006 passed by Hon’ble Justice V.K. Ahuja in C.S. No.18 of 2004 be stayed and/or set aside; c) The plaintiff/respondent be restrained by an appropriate order of injunction from executing the decree and/or taking any steps with regard to the said exparte decree; d) Ad interim order in terms of prayers above; e) Such other and/or further order or orders and/or direction or directions be given as this Hon’ble Court may deem fit and proper. 6. Plaintiff opposed the application on the ground that the defendants have deliberately made incorrect and false averments in the application and thus misled the Court to obtain an order in their favour. After the petition for execution was transferred to the High Court of Calcutta in March, 2009, defendants were served by publication and yet they did not cause appearance in those proceedings. On 11.8.2009, Receiver appointed by the High Court of Calcutta had in fact visited the premises of the defendants and thus they were fully aware of the proceedings and the decree passed by this Court. 7. On the asking of the defendants, this Court, in terms of order dated 25.5.2010 had recalled the execution. This was subject to the defendants’ depositing the suit amount in this Court. Now, the same stands withdrawn by the plaintiff. 8. On 29.10.2010, in order to decide the instant application (OMP No.202/2010), this Court framed the following issues: 1. Whether there are sufficient grounds to set aside the ex-parte decree dated 22.12.2006? OPA 2. Whether the application is within time? OPA 3. Relief. 9. Record reveals that defendants did not take any steps for summoning the witnesses, but in fact moved an application for getting the witnesses examined at Calcutta on commission. When the defendants did not take any effective steps for summoning the witnesses, this Court on 16.8.2012 passed the following order: “Mr. Whether the application is within time? OPA 3. Relief. 9. Record reveals that defendants did not take any steps for summoning the witnesses, but in fact moved an application for getting the witnesses examined at Calcutta on commission. When the defendants did not take any effective steps for summoning the witnesses, this Court on 16.8.2012 passed the following order: “Mr. Ajay Kumar, learned Senior Advocate has invited my attention to the judgment dated 28th June, 2005 passed by this Court. (copy taken on record). The applicants are directed to personally remain present in the Court for their examination on 27th September, 2012. Also, steps for summoning the official witnesses be taken within one week. Dasti notice be handed over to the learned counsel for the applicants for the service of witnesses.” (Emphasis supplied). 10. On 27.9.2012, only two witnesses were present and their statements recorded, but defendants No.2 and 3 personally did not cause appearance. The reason is quite apparent and recorded by the Court in its order dated 27.9.2012, in the following terms: “4. Reason for the applicant for not coming to the Court is quite clear. An FIR against the applicant, i.e. Dr. Pyush Agarwal and his wife defendant No.3 Dr. (Mrs.) Neelam Agarwal was registered within the State of Himachal Pradesh. The said defendants approached this Court by filing CRMMO No.44/2005, titled as Dr. Pyush Agarwal and another versus State of Himachal Pradesh, which was dismissed in terms of order dated 28.6.2005, which is reproduced as under: “Mr. Jagdish Vats, learned counsel appearing for the petitioners has submitted that a perusal of the F.I.R. in question does not reveal the commission of any offence and that at the best it is a civil liability. Mr. J.K. Verma, learned Deputy Advocate General appearing for the respondent on the other hand submits that a bare perusal of the F.I.R. in question clearly suggests that the commission of offences has clearly been made out. At this stage, Mr. Ajay Kumar Sood, Advocate submits that he has been engaged by the H.P. Financial Corporation and H.P. State Industrial Development Corporation Ltd., both Corporations being complainants in the case and the FIR in question having been lodged at their instance. None of these two Corporations is, however, a party respondent in this petition. Mr. At this stage, Mr. Ajay Kumar Sood, Advocate submits that he has been engaged by the H.P. Financial Corporation and H.P. State Industrial Development Corporation Ltd., both Corporations being complainants in the case and the FIR in question having been lodged at their instance. None of these two Corporations is, however, a party respondent in this petition. Mr. J.K. Verma, learned Deputy Advocate General submits that in terms of Section 82 of the Code of Criminal Procedure, the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, has declared both the petitioners as proclaimed offenders. After hearing the learned counsel for the parties and on perusal of the F.I.R. in question, I am of the opinion that indeed the FIR in question does not reveal the commissioning of the offence by the petitioners. There is no warrant for interference by this Court in terms of Section 482 of the Code of Criminal Procedure. Actually while going through the FIR in question, I found that public property and public assets were entrusted to the petitioners in their capacity as the Directors of M/s Napa Papers Limited, Barotiwala and it is with respect to such public property and public assets that these two persons have been accused of committing the offence of criminal breach of trust. The FIR clearly reveals that huge amounts of money were allegedly outstanding against these two petitioners and it is in the course of such transactions that public assets were entrusted to them, detailed list of these assets finding a mention in the FIR in question. The allegation is that these two petitioners removed the public assets with a view to depriving the aforesaid two public Corporations of their legitimate rights and dues. The accusation accordingly is that these two persons have committed the offence of criminal breach of trust. Mr. J.K. Verma, learned Deputy Advocate General appearing for the respondent-State submits that the Court of learned Sub Divisional Judicial Magistrate, Nalagarh as well as the Police are facing difficulty in procuring the attendance of the petitioners even after they have been declared as proclaimed offenders. Mr. J.K. Verma, learned Deputy Advocate General appearing for the respondent-State submits that the Court of learned Sub Divisional Judicial Magistrate, Nalagarh as well as the Police are facing difficulty in procuring the attendance of the petitioners even after they have been declared as proclaimed offenders. While dismissing the petition under Section 482 of the Code of Criminal Procedure, I direct the Superintendent of Police, Solan as well as learned Sub Divisional Judicial Magistrate, Nalagarh to ensure that all possible steps are taken in accordance with law with a view to ensuring that the criminal case in question progresses and further steps are also taken (in accordance with law) to ensure that the accused persons/petitioners are made to appear in the Court to stand trial. The petition is dismissed.” (Emphasis supplied) 5. Quite apparently, applicant and his wife have been declared as proclaimed offenders by the Court of Sub Divisional Judicial Magistrate, Nalagarh and to avoid arrest he/his wife are not coming forward to depose in support of the present application. 6. Two witnesses Shri Ishwar Chandra Jaiswal and Shri Ram Krishan Mandal are present in the Court. Statements of these witnesses recorded. 7. Mr. Bhanot, learned counsel for the applicant, is not clear as to whether applicant Dr. Pyush Agarwal shall appear in the Court as a witness or not. As such, he wants to seek further instructions.” (Emphasis supplied). Thereafter, the matter came up for hearing on 15.11.2012, when the right of the defendants to lead further evidence was closed. However, defendants filed another application, being OMP No.487 of 2012 for appointment of a Local Commissioner for recording the evidence. The said application was dismissed in terms of order dated 29.11.2012. 11. Relentlessly on 7.12.2012, defendants filed yet another application, being OMP No.534 of 2012, for appointment of Local Commissioner and recalling the order dated 15.11.2012, with the following prayer: “It is therefore respectfully prayed that this application may kindly be allowed and the local commissioner may kindly be appointed to examine the applicant by this Hon’ble Court by recalling the order dated 15.11.2012 in the interest of justice, equity and fair play.” This application was also dismissed with costs of Rs.5000/-, in terms of order dated 8.1.2013. 12. Defendants have now filed the instant (third) application (OMP No.121/2013) for appointment of a Local Commissioner for examining the defendants. 13. 12. Defendants have now filed the instant (third) application (OMP No.121/2013) for appointment of a Local Commissioner for examining the defendants. 13. It is thus seen that defendants No.2 and 3, who have been declared as proclaimed offenders, have been trying to avoid their appearance before this Court on various occasions. Despite the orders passed by this Court, they have failed to appear and get themselves examined as witnesses, in support of their application for setting aside the ex-parte decree. Not only that, they have been filing applications, one after another, only to keep the present proceedings pending and ensure delay of execution of the decree in its totality. 14. Court had decreed the suit for a sum of Rs. 25,53,450/- alongwith interest at the rate of 18.5% per annum from the date of filing of the suit till its realization. Defendants have deposited, in these proceedings, only a sum of Rs. 25,53,450/- but the component of interest, which perhaps is more than the suit amount, is yet to be recovered from them. Plaintiff is a public sector undertaking and defendants have utilized the borrowed money to their advantage and benefit. 15. A careful perusal of testimony of the defendants’ witnesses, i.e. Shri Ishwar Chandra Jaiswal (AW-1) and Shri Ramkrishna Mandal (AW-2), would only reveal that the averments made in the application are false and incorrect. AW-2 has admitted that the address of defendant No.2, as per driving licence, is “44B, Rafi Ahmed Kidwai Road, Wellesly Mansion, Kolkata-700016”. Now significantly, this is the address at which the summons in the main suit were served upon the defendants. Hence, the averments made in para-6 of the application are false and incorrect. 16. That apart, Shri Ishwar Chandra Jaiswal (AW-1), in no uncertain terms, has deposed that he does not know as to how and when the defendants learnt about the ex-parte decree. On a Court query put to him, he has deposed that he is not aware of the amount due and payable by the defendants, at the time of talks of settlement, as the matter was being looked into by defendant No.2 himself. This witness also admits that letter (Ex. AW-1/A) was actually received by Shri Kanchan Jaiswal, Advocate, who represents the defendants and letters (Ex. RA and RB) were written by the said Advocate. This witness also admits that letter (Ex. AW-1/A) was actually received by Shri Kanchan Jaiswal, Advocate, who represents the defendants and letters (Ex. RA and RB) were written by the said Advocate. Hence, in my considered view, this witness has in fact supported the case of the plaintiff rather than proving the defendants’ case. 17. Not only that, the plaintiff, through its witness Shri Pawan Kumar Bali (RW-1) has placed on record driving licence of defendant No.2, wherein the address at which the plaintiff got issued the summons is duly recorded. True it is that these defendants have another address but then the fact that the address furnished by the plaintiff is also their postal address cannot be denied. 18. That apart, none of these witnesses have explained the delay in filing the application for setting aside the ex-parte decree. It is a settled proposition of law that each day’s delay has to be explained by the applicant. In the instant case, apart from the fact that the averments made in the application are false, they are conspicuously silent with regard to the explanation of each day’s delay. 19. AW-1 has deposed that he had appointed Advocate Shri Feroz Ahmed at Calcutta for taking steps for ascertaining the particulars of the Court proceedings. Now, this Advocate has not been examined in Court. When the defendants themselves were fully aware of the decree passed by the Court, by the factum of appointment of the Receiver, who visited their premises in 2009 itself, then it cannot be said that the defendants learnt about the ex-parte decree only in the first week of February, 2010. Moreover the defendants were proposing compromise through this counsel. 20. As already observed, none of the defendants’ witnesses have explained the delay, much-less satisfactorily explained each day’s delay. 21. It be also noticed that exact number of days by which the application is delayed, for which condonation is prayed, have not been specifically mentioned in the application. Also, the same is not disclosed by the witnesses. 22. In fact, when proceedings for appointment of a Receiver were initiated way back in September, 2009 and the Receiver had visited the clinic of defendant No.3, then it cannot be said that defendants were not in the knowledge of the decree passed by the Court. Significantly, another Advocate appointed by the defendants has not been examined. 22. In fact, when proceedings for appointment of a Receiver were initiated way back in September, 2009 and the Receiver had visited the clinic of defendant No.3, then it cannot be said that defendants were not in the knowledge of the decree passed by the Court. Significantly, another Advocate appointed by the defendants has not been examined. Also, there is no affidavit of the learned counsel handling the matter, disclosing the correctness of the averments made in the application. It is not that Mr. Kanchan Jaiswal was no longer representing the defendants in any proceedings. In fact, as is so admitted by the witnesses, he had represented the defendants in the proceedings at Calcutta, even after the order of appointment of Receiver was passed. 23. I am of the considered view that the defendants, out of whom defendants No.2 and 3 are proclaimed offenders, have been abusing the process of law by not only filing the instant applications but also filing multiple applications in these proceedings, by making false and incorrect averments. Defendants are aware of the fact that they have been declared proclaimed offenders, yet they have not taken any steps for assailing the said order or joining various criminal proceedings initiated against them. Record also reveals that defendants had unsuccessfully challenged the criminal proceedings before this Court, which is evident form the judgment dated 28.6.2005 passed by this Court in CRMMO No.44/2005, titled as Dr. Pyush Agarwal and another versus State of Himachal Pradesh (Ex. RD). 24. Learned counsel for the defendants has invited my attention to the provisions of Order 26 Rules 4 and Order 16 Rule 19 of the Code of Civil Procedure to contend that the defendants cannot be compelled to attend the Court in person to give evidence, and as such a commission be appointed to record the statements of the defendants. 25. In support of such submission, learned counsel has referred to and relied upon Kewal Ram versus Smt. Ram Lubhai and others, (1987) 2 SCC, 344; Balwinder Kaur versus Hardeep Singh, (1997) 11 SCC 71; M.K. Prasad versus P. Arumugam, (2001) 6 SCC, 176; Vijay Kumar Madan and others versus R.N. Gupta Technical Education Society and others, (2002) 5 SCC 30 ; Rabindra Singh versus Financial Commissioner, Cooperation, Punjab and others, (2008) 7 SCC 663 ; and Renuka Das versus Maya Ganguly and another, (2009) 9 SCC 413 . 26. 26. The submission, to say the least, is preposterous. Right of the defendants/applicants to lead further evidence was closed in terms of order dated 15.11.2012 and there is no justification for review of the same. The provisions do not apply to a party to the litigation, who is supposed to examine himself of his own. The provisions would apply only with regard to a witness who is not a party. That apart, proviso to Rule 19 of Order 16 is evidently clear and since Calcutta is connected by air, witnesses can be ordered to attend in person. 27. The decisions referred to by the defendants are in applicable to the given facts and circumstances. 28. Undisputedly, the Court has wide powers to condone the delay but the discretion has to be exercised judiciously, taking into account the overall attending facts and circumstances. 29. It may only be mentioned that valuable Court time has been wasted by the defendants in these proceedings. At some stage, plaintiff was even ready and willing to compromise the matter. 30. It cannot be said that there are sufficient grounds to set aside the ex-parte decree dated 22.12.2006 or that the defendants have filed the application within time. 31. The issues are answered accordingly. 32. The application for appointment of Local Commissioner, being OMP No.121 of 2013, deserves to be rejected, also in view of the dismissal of OMP No.534 of 2012 and earlier orders passed by this Court. 33. Consequently, for all the aforesaid reasons the present applications, devoid of any merit, are dismissed, with costs quantified at Rs.1,00,000/- (Rupees one lac) only. 34. It is seen that the defendants availed advantage of the orders passed by this Court, inasmuch as the decree which was transferred to the High Court of Calcutta, was recalled in these proceedings. As such, the Registrar General of this Court is directed to send the decree back to the High Court of Calcutta for execution and recovery of the remaining decretal amount. Needful shall positively be done within a period of four weeks. Both the applications stand disposed of.