ESCORTS FINANCE LIMITED Vs. NIELCON LIMITED

JUDGEMENT

(1.) Applications (I.As. 4411/98 & 4413/98) under Order 37 Rule 3(7) of the Code of Civil Procedure (for short 'the Code') have been filed by the two defendants separately for condonation of delay in filing applications for leave to defend.

(2.) Plaintiff, a non-banking financial corporation, has filed a suit for recovery of Rs. 25,50,645.00 under summary procedure of Order 37 of the Code against the defendants, defendant No. 1 as the principal debtor and defendant No. 2 as its surety. The plaintiff had granted a loan of Rs. 30.00 lakhs to finance certain plant and machinery to defendant No. 1. An agreement was executed between the parties on 29.12.1994 agreeing to repay the loan in 36 monthly instalments of Rs. 1,10,834.00 each. Some instalments were paid but balance remained unpaid, some cheques given towards the repayment were dishonoured. After serving notice of demand, the suit was filed for recovery of the balance amount. The defendants put in appearance. Summons for judgment was served and the defendants have filed applications for leave to defend after the prescribed period of 10 days. They seek condonation of delay of 34 days. The two applications contain identical pleas.

(3.) It is adnutted by the defendants that their Counsel had accepted the summons for judgment in Court on 31.3.1998, however, copy of the application for judgment was supplied to him on 1.4.1998; he sent the same to the defendants in Bombay on 3.4.1998, received by the latter on 8.4.1998. Defendants sent replies on 10.4.1998 which were received by their Counsel in Delhi on 14.4.1998. The said Counsel prepared the replies on 17.4.1998 and st to the defendants in Bombay who received the same on 22.4.1998. The defendants sent again with suggestions for change/modifications to their Counsel on 27.4.1998 who received in Delhi on 30.4.1998. The Counsel after making requisite changes sent the applications on 4.5.1998 which were received by the defendants in Bombay on 8.5.1998. These applications were filed in this Court on 14.5.1998. Delay is sought to be condoned on the ground that defendants are placed in Bombay, and delay is due to finalisation of replies in consultation with their Counsel in Bombay and Delhi. The plaintiff in replies have alleged that sufficient cause for condonation of delay is not shown.