RANE PARKASH Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) Defendant-Central Bank of India has filed this application under Order XXXVII Rule 3 (5) and (7) read with Section 151 CPC praying for condonation of delay in filing the leave to defend application and for grant of leave to defend a summary suit filed by the above named plaintiff.

(2.) The relevant facts leading to the application are that the above named plaintiffs have filed a suit for recovery of arrears of balance rent amounting to Rs.34,98,130 in respect of the rented premises Japan Hall consisting of a total area of 4725 sq.ft. at the rate of Rs. 50 per sq. feet. In terms of the registered sale deed dated 30.12.98. The suit was filed and registered as a summary suit on 9.1.02 under Order XXVII CPC and summons for appearance in the prescribed form were issued to the defendant returnable for 7.5.02. The said summons were served on the defendant on 5.2.02 and the defendant entered appearance on 15.2.02 thereby giving two addresses viz address No. (1) R. M. Gupta & company, Advocats, 121 Lawyers Chamber, Delhi High Court, New Delhi as the address of the defendant for the service of notices, processes etc. and (2) Central Bank of India through General Manager, 72, Janpath, New Delhi for the service of summons on the defendant. Plaintiff took out summons for judgment which were served on the defendant bank on 18.5.02 as well as in the office of Mr. R. M. Gupta, Advocate, on 17.5.02. However no application for leave to defend the suit was moved within the stipulated period of 10 days either from 17.5.02 or 18.5.02. In the meantime one of the plaintiff i.e. Smt. Shan Prakash-plaintiff No.3 died on 20.5.2002 and so an application under Order 22 Rule 3 read with Section 151 CPC was moved on behalf of the plaintiff for substitution of her legal heirs i.e. plaintiff Nos. 1 and 2. and one more person. A notice of the said application was served on the defendant but no reply was filed and the application was allowed vide order dated 24.1.03 and heirs of plaintiff No.3 were ordered to be brought on record and an amended memo of parties filed.

(3.) The present application for condonation of delay in filing the leave to defend application and for grant of leave to defend has been made by the defendant on 20.3.2003 only with the averments and allegations that the leave to defend application could not be filed because there was no substantial/effective proceedings in the suit between the period of May to August on account of death of plaintiff No.3 and the proceedings which continued related only to the substitution of the LRs of plaintiff No.3 who died on 20.5.2002 i.e. three days after the receipt of the notice in the office of the counsel for the defendant. The defendant and his counsel remained under the impression that the summons for judgment, if any, shall be issued by the Court after the disposal of the said application. It is also alleged that there has been no proper service of the summons for judgment on the defendant and in any case the form in which the notice/summons for judgment have been served on the defendant/counsel does not clearly mentioned the fact that the same were summons for judgment and that the defendant was required to file an application for leave to defend the suit within ten days. Along with the application affidavit of Shri H. K. Verma, Assistant General Manager and constituted attorney of the bank has been filed raising certain defence pleas as to the merit of the plaintiff's claim and the said claims being barred by time.