NIRAYU PRIVATE LIMITED Vs. MOHAN LAL

JUDGEMENT

(1.) This order shall govern the disposal of an application (IA 931/96), filed on behalf of the defendants 1,2,3 & 5 under Order XXXVII Rule 3(7) of the Code of Civil Procedure, 1908 (hereinafter referred to as `the CPC') seeking condonation of delay in filing the application for leave to defend the suit.

(2.) The facts relevant for the disposal of the above mentioned application lie in a narrow compass. The plaintiff M/s. Nirayu Private Limited, through its constituted attorney Shri Kamal Kumar has filed a suit (Suit No.2815/94) for the recovery of Rs.14,63,438.58 against the defendants under Order XXXVII, CPC. After the service of the summons of the suit in Form No.4, Appendix-B, CPC, the plaintiff filed an application [IA 9761/95] for issue of summons for judgment on the defendants. The above said application came up for hearing before the learned Predecessor of this Court on 17.10.95 and the learned Predecessor of this Court vide order dated 17.10.95 directed that summons for judgment be served on the defendants on plaintiff's filing the process fee, for 9.1.1996.

(3.) Defendants 1,2,3, & 5 (hereinafter referred to as `the applicants') have filed the present application (IA 931/96) under Order XXXVII, Rule (3)7, Civil Procedure Code with the prayer that delay in filing the application, seeking leave to defend the suit be condoned for reasons stated in the application. The main reason advanced by the applicants in the above said application for condoning the delay is that the summons for judgment have not been served on the applicants in accordance with the mandate of Order XXXVII, Civil Procedure Code as no affidavit verifying the cause of action and the amount claimed has been served alongwith the summons for judgment on the applicants. It is stated that in the absence of the above said statutory affidavits there is no service of summons for judgment on the applicants. In the application, besides the above ground, the applicants, on merits have taken other grounds also to the effect that there were certain disputes in the partnership firm of M/s.Mohan Lal & Company (defendant No.1) of which defendants 2 to 5 are partners and that the accounts of the defendant firm had not been finalised and all the relevant documents/books were lying with M/s.P.N.Khanna and Company, Charted Accountants as a result of which the applicants did not have any access or information regarding the accounts and were unable to file the application seeking leave to defend the suit. It is also stated that there were also talks for settlement/compromise going on between the parties. It is prayed by the applicants in the above said application that delay in filing the application (IA 930/96), seeking leave to defend the suit be condoned.