TECRON BEVERAGE ENGINEERING Vs. KETTNER GMBH

JUDGEMENT

(1.) Plaintiff filed this application under Order XXXVII Rule 2(3) Civil Procedure Code alleging that defendants admit that they were served with summons on 25th February 1999. The power of attorney executed by Ms. Elizabeth Mathews as attorney of defendants on 18th March 1999 in favour of Sh. Joseph Pookkatt, Advocate, was filed on or after 23rd March 1999. There is no power of attorney placed on the file in favour of Sh. Rajiv Bansal, advocate through whom appearance was entered into by the defendants on 23rd March 1999. Authorisation in favour of said Ms.Elizabeth Mathew has not been filed by defendants. No application has been moved seeking condonation of delay in entering appearance by the defendants. It is further alleged that plaintiff had prepared three sets of the copies of plaint and documents and each set was tied with double knot with tags in machine punched holes. Each set was thereafter kept in a cloth lined envelope and weighed and additional postage stamps paid thereon. Thereafter, all the three sets were submitted by the counsel with process fee form in the Registry for being sent to defendants and their solicitors. In the memo of appearance filed on behalf of defendants it has been deceptively alleged that the defendants received copy of plaint without annexures. It is further staled that plaintiff's counsel sent a notice to produce for inspection the said three sets of registered covers and papers received on said Sh. Rajiv Bansal but he has failed to give inspection thereof. Copies of the said notice, registration receipt dated 3rd May 1999 and AD showing delivery of the said notice on 5th May 1999, have been filed by way of Annexures A,B and C respectively alongwith the application. It is claimed that copy of plaint was received along with annexures, by the defendants. It was prayed that suit be decreed against the defendants under Rule 2(3) of Order XXXVII Civil Procedure Code with costs. Affidavit of Atul Sarin, proprietor of plaintiff has also been filed along with the application.

(2.) Before adverting to the reply filed by defendants to the said application I would like to refer to some of the orders passed in the case. On suit being filed under Order XXXVII Civil Procedure Code, in terms of the order dated 11th February 1999 summons in Forms .4 in Appendix B Civil Procedure Code were ordered to be issued to the defendants returnable on 19th May 1999 by the Joint Registrar. Order dated 19th May 1999 on which date the proprietor of plaintiff appeared in person, notices that lawyers were not appearing in court on that day and the case was, therefore, postponed to 6th August 1999 with the observation that if any process has been received back unserved/unexecuted the same will be issued again for that date. In the meantime on 25th May 1999 in the present I.A.being No. 5392/99 summons for judgment was ordered to be issued for the date already fixed in the case on filing PF within a week by the Joint Registrar. It seems that O.A.13/99 was filed by the plaintiff against the said order dated 25th May 1999 and this O.A. was disposed of by the order dated 16th July 1999 observing as under:-

(3.) Simultaneously, notice of I.A.5392/99 was ordered to be issued to the defendants through counsel for 15th September 1999. On 6th August 1999 defendants were allowed two weeks time to file reply. In the meantime summons for judgment came to be issued to the defendants. Order dated 15th September 1999 on which date Sh. Rajiv Nayyar, Senior Advocate alongwith Sh. Ashish Dholakia appeared for defendants, notices that I.A.9106/99 for leave to defend suit and I.A.9115/99 seeking condonation of delay in filing I.A.9106/99 have been filed on behalf of defendants and both these applications were ordered to be taken up for consideration after the disposal of aforesaid I.A.5392/99: