INTERNATIONAL AIRPORT AUTHORITY OF INDIA Vs. ARVIND KHANNA

JUDGEMENT

(1.) .This appeal, under Section 10 of the Delhi High Court Act, 1966 read with Section 104 and Order 43 Rule 1(d) of the Code of Civil Procedure, is directed against the order dated 16 August 1993 of the learned Single Judge dismissing the appellant's application No.7158/93 (under Order 9 Rule 13 CPC) in Suit No.2069/92 for setting aside the decree dated 4 August 1993 made under order 8 Rule 10 Civil Procedure Code for default in not filing the written statement by the defendant - appellant herein.

(2.) .It appears that the plaintiff/respondent was engaged by the appellant as a contractor/agent for operation of electronic PABX telephone exchange at t he Indira Gandhi International Airport New Delhi. The respondent had agreed to operate the STD pay phones installed at the said airport w.e.f. 6 January 1990. From 6 January 1990 to 14 April 1992 Mahanagar Telephone Nigam Limited raised a bill for the STD pay phone booths operated by the respondent at Rs. 1,58,00,691.00 , against which the respondent contractor is said to have deposited only a sum of Rs. 1,19,18,306.00 . The respondent filed a suit for recovery of Rs.22,73,930.50p against the appellant alongwith costs and interest, being the alleged salary and supervision charges, profit share, security and bank guarantee of Rs.1 lakh, furnished by him to the appellant besides costs. Appearance was put in for the appellant during the suit proceedings on 15 Octopber 1992 when a direction was made for the written statement being filed by the appellant within three weeks. It appears that t written statement was not filed within the stipulated time but was filed with counter claim, deficiently stamped, on 28 May 1993 alongwith an IA 6187/93 under Section 148 CPC. The counter-claim was for an amount of Rs. 16.49 lakhs together with interest. It was stated that the Court Fee on the claimed amount was deficient but could not be paid as sanction of the competent authority was in the process of being obtained. Extension of time for making good the deficiency in the Court Fee was sought for. This application was fixed for 14 July 1993. On that date counsel for the plaintiff/respondent sought time to look into the matter and the application was directed to be re-notified on 4 October 1993.

(3.) .Meanwhile IA 6897/93 (Under Order 8 Rule 10 CPC) dated 3 August 1993 was filed by the plaintiff/respondent for passing a judgment in the suit against the appellant. This application was posted before the Court on 4 August 1993. Surprisingly the defendant's application (IA 6187/93), adjourned earlier to 4 October 1993, was, without an order for pre-poning the date, also shown in the cause list of 4 August 1993. On that date, noticing its mention in the cause list, the defendant's counsel appeared and defendant's application for extension of time in making good the deficiency in the Court Fee was dismissed; the written statement was directed not to be taken on record, having been filed after the expiry of 3 weeks given to the appellant for the purpose on 15 October 1992; the respondent's application under Order 8 Rule 10 Civil Procedure Code was allowed and the suit was decreed by the learned Single Judge, holding: