TECHNOLOGY DEVELOPMENT BOARD Vs. USHA LTD

JUDGEMENT

(1.) THE present suit for recovery of Rs.1,38,04,188.00 was filed by the plaintiff-Technology Development Board against two defendants. The first defendant is the Company-M/s. Usha (India) Ltd. and the second defendant is Sh.Vinay Rai, the guarantor and director of the defendant no.1.

(2.) THE subject suit was filed under Order 37 CPC as a summary suit way back in the year 2002 in which no proceedings could take place immediately after service of the defendants inasmuch as firstly an application being IA No.7524/2005 was moved on behalf of the defendant no.2 pointing out the factum of the defendant no.1-company being a sick company under the aegis of Board for Industrial and Financial Reconstruction (BIFR) and therefore it was said that leave to defend was not required and, subsequently an application being IA No.3724/2009 was specifically filed under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (in short SICA) for staying the suit.

(3.) TODAY , the suit was listed pursuant to the order dated 7.9.2012 which noted that the plaintiff had not filed documents in support of the plaint. Now, the original documents, with respect to the loan transactions and the guarantee executed by the defendant no.2, have been filed. The provision of Order 37 Rule 3 sub-Rule 6 is clear in that if no leave to defend application is filed within the prescribed period of service of the summons for judgment, the plaintiff will be entitled to judgment forthwith. Summons for judgment were issued vide IA No.1513/2004 and service was effected on the defendants by publication as recorded in the order dated 4.4.2006. Defendant no.1 failed to file any application for leave to defend and the defendant no.2 only filed the IA Nos.7524/2005 and 3724/2009. Therefore, there is no leave to defend application on behalf of any of the defendants and therefore the plaintiff is entitled to judgment forthwith.