IN THE COURT OF MS NIVEDITA ANIL SHARMA
DISTRICT JUDGE
COMMERCIAL COURT-01, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CS Comm no. 311/2019
Extramile Cargo Movers v. Sigma Supply Chain & Ors.
24.11.2020.
In compliance to the office order no. 417/RG/DHC/2020 dated 27.08.2020
and letter dated 20.09.2020 of the Registrar General High Court of Delhi,
New Delhi towards graded opening of District Court post covid-19
pandemic, the Judicial Officers of the Shahdara District shall hold the
physical Courts as per schedule/roster, order no. / [Link]./East/KKD/Delhi
dated 30.08.2020 regarding Standard Operating Procedure/Guidelines for
resumption of physical hearing and order no. 5831-5853/Judl/SHD/2020
dated 28.10.2020 in respect of Roster for physical hearing from 01.11.2020
to 30.11.2020 of the learned Principal District and Sessions Judge,
Shahdara, Karkardooma Courts, Delhi as well as earlier orders of Hon'ble
High Court of Delhi and Principal District and Sessions Judge, Shahdara,
Karkardooma Courts, Delhi, the present matter has been put up before the
undersigned for physical hearing.
Present : [Link] and Mr. Lokesh Verma, counsel for the plaintiff (in
Court room).
[Link] Vasisht, proprietor of the plaintiff (in Court room).
Mr. Kumar Ankur and Mr. Bipul Kedia, counsel for defendants (in
Court room).
Mr. Manish Pandey, Commercial Head of the defendant company
(in Court room).
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1. The matter has been taken up today through physical hearing.
2. Both the sides have submitted that the settlement has not been
effected between the parties and they have requested for proceeding
further with the case.
3. Counsel for the plaintiff has filed today the hard copy of the reply
to the application of defendant for seeking condonation of delay in
filing leave to defend. Copy given to the counsel for the defendants.
4. Arguments have been heard. Material on record, relevant provisions
of law and the precedents on the point have been perused.
5. Counsel for the plaintiff have relied upon the judgments reported as
follows:
a) M/s S S Steel Industry v. M/s Shri Guru Hargobind Steel,
C.R.P No. 42 of 2019, judgement delivered on 05.09.2019 (High
Court of Delhi);
b) Sandeep Kumar v. Satpal, Civil Revision no. 2796 of 2016,
decided on 13.12.2017 (High Court of Punjab and Haryana at
Chandigarh);
c) Comba Telecom Limited v. Tel Private Limited, FAO(OS) No.
63 of 2016, decided on 29.02.2016, 228 (2016) Delhi Law Times
713 (DB) Delhi High Court;
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6. Counsel for the defendants have relied upon the judgments reported
as follows :
a. M/s Mechelec Engineers & Manufacturers v. M/s Basic
Equipment Corporation, Civil Appeal no. 508 of 1976, decided on
November 1, 1976 (Supreme Court Cases, 687);
b. Motilal Oswal Home Finance Limited v. Karrm Infrastructure
Private Limited, Summon for judgment no. 34 of 2019 and 589
and Commercial Summary Suit No. 589 of 2019, ordered on
31.01.2020 (Bombay High Court);
c. Indian Oil Corporation Limited & Ors v. Subrata Borah
Chowlek Etc, Civil appeal no. 9726-9727 of 2010, decided on
12.11.2020 (Supreme Court of India);
d. N. Balakrishnan v. M. Krishnamurthy, decided on 03.09.1998
(Supreme Court of India).
7. This is a suit under order XXVII read with section 151 of the Civil
Procedure Code, 1908 (hereinafter referred to as the CPC) for
recovery of Rupees Seventeen Lakhs Sixty Thousands Five
Hundred Eighteen only (Rs.17,60,518/-). The fresh case was
received by way of assignment on 17.12.2019.
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8. As the case was within the jurisdiction of this Court and within the
period of limitation, summons were ordered to be served upon all
defendants under order 37 of the CPC and defendant no.1 to 5 were
served on 22.09.2020. Defendant no.6, who is Asstt General
Manager of defendant no.1, is also deemed to be served as
defendant no.1 and the other Directors (defendant no.1 to 5) are
served. However the appearance had not been filed by all the
defendants within 10 days of the service of summons under the
prescribed format of under order 37 of CPC as is the mandatory
requirement.
9. JA/Reader of the Court as well as JA/Ahlmad of the Court have
reported that the appearance has not been filed by the defendant in
the Court or on the official e-mail id of the JA/Reader of the Court
till date.
[Link] the circumstances as the mandatory requirement of filing
appearance by all the defendants within 10 days of service has not
been complied with by all the defendants, the plaintiff has become
entitled to the suit being decreed in its favour.
[Link] the judgment of Hon'ble High Court of Delhi in the case reported
as Comba Telecom Ltd. v. [Link] Priave Ltd. 2016(228) DLT 713 it
has held that in a Suit under summary procedure under Order
XXXVII, where summons are duly served and the defendant has
not entered appearance, the defendant could not defend the Suit, all
allegations made in the plaint are deemed to be admitted and the
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consequences are that the plaintiff would be entitled to a decree as
indicated under Order XXXVII Rule 2 Sub Rule 3 CPC. Order
XXXVII Rule 2 Sub 3 CPC specifically lays down that defendant
shall not defend the Suit unless he enters appearance and in default
of his entering appearance the allegations made in the plaint shall
be deemed to be admitted and plaintiff would be entitled to a decree
for the sum not exceeding the sum mentioned in the summons.
[Link] judgments relied upon by the counsel for the defendants are not
applicable to the given facts as the circumstances of each case are
peculiar in nature and the judgments relied upon by the defendants
are distinguishable as is clear from the facts and law, as elaborated
in the judgments.
[Link], the present suit is hereby ordered to be decreed in
favour of the plaintiff and against all the defendants for an amount
of Rupees Seventeen Lakhs Sixty Thousands Five Hundread
Eighteen only (Rs.17,60,518/-) along with interest @ 18% p.a
pendentilite.
[Link] order regarding the future interest can be passed as this is a suit
under order 37 of the CPC.
[Link], no order for litigation expenses or fees of the counsel for
the plaintiff has been passed as the counsel for the plaintiff has not
filed the certificate of fees.
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[Link] separate orders are required to be passed on the applications i.e.
first application under order XXXVII Rule 3 Sub Rule 5 of the
CPC on behalf of defendant no.1 to 5, second application under
order XXXVII Rule 7 for condonation of delay of 17 days in filing
appearance on behalf of defendants, third application under order
XXXVII Rule 7 for condonation of delay of 21 days in filing leave
to defendant on behalf of defendant along with affidavit under order
XXXVII Rule 3 Sub Rule 5 of the CPC on behalf of defendant no.1
to 5 seeking leave to defend filed on behalf of the defendants and
reply filed on behalf of plaintiff to the application of defendant for
seeking condonation of delay in filing leave to defend as suit is
decreed in terms of the order 37 of the CPC since the appearance
has not been filed by the defendants within 10 days of the service
of summons in the prescribed format of under order 37 of CPC.
[Link] decree sheet be prepared accordingly.
[Link] the completion of formalities, the JA/Ahlmad shall consign
the file to the record room.
[Link] of the order be given to the counsel for the plaintiff and
counsel for defendants, as they are present in the Court today.
20.A copy of the order be sent to the Computer Branch for uploading
the same on the website.
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21.A copy of the order also be sent to the AO (Judicial) who shall
supply the same to all the concerned parties in terms of the office
order no.2204-2221/D&SJ/SHD/KKD/Delhi dated 20.04.2020 of
the learned District & Sessions Judge, Shahdara, KKD Courts,
Delhi.
Announced through physical hearing (NIVEDITA ANIL SHARMA)
on this 24th day of November, 2020. District Judge
Commercial Court-01,
Shahdara, Karkardooma Courts,
Delhi.24.11.2020.
