M PAUL BABUTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The applicant/respondent has filed this application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex-parte decree dated 27.9.96 passed in Suit No. 209A/90.

(2.) The facts giving rise to the application under Order 9, Rule 13, Civil Procedure Code are these. The applicant/respondent had entered into a contract with the respondents/ petitioners for the construction of two tier rack system for Publication Godown, Department of Publications, Government of India. Consequent upon certain disputes having arisen between the parties, matter was referred to the Sole Arbitrator for adjudication. On 27.12.1989, the Arbitrator published his award. Thereafter, the respondents/petitioners filed an application for a direction to the Arbitrator to file his award. In the meanwhile, the Arbitrator himself filed the award in this Court. Notice of filing of the award was served on the applicant/respondent. Objections to the award were filed on behalf of the applicant/respondent herein. These objections were registered as IA No. 4054/90. On 19.12.1991, issues were framed and parties were directed to file evidence by way of affidavits. However, the parties filed their affidavits and the case was listed for final disposal. On 13.2.96, there was no appearance on behalf of the applicant and Court's notice was ordered to be issued to Shri Madan Lokur, Standing Counsel for the applicant herein. Despite service of notice, Shri Madan Lokur did not appear on 1.5.96 and the case was adjourned to 26.9.96. On that date also, none appeared on behalf of the applicant and the case was adjourned to 27.9.96. On 27.9.96, the applicant's objections (IA No. 4054/90) were dismissed as none appeared on behalf of the applicant and an ex parte decree in terms of the award was passed. On 12.12.96, the applicant filed the present application under Order 9, Rule 13, CPC for setting aside the ex-parte decree on the ground that the applicant's Counsel Ms. Savita Sharma, Advocate did not appear before the Court on 27.9.96 as she had ceased to be applicant's Counsel and she also did not inform the applicant about the said date. It was also stated in the application that the applicant was not aware of the ex-parte decree dated 27.9.96 until receipt of the respondent's letter on 27.11.96.

(3.) In opposition of this application two points are urged before me. The first is that the application is barred by time and no application under Section 5 of the Limitation Act has been filed seeking condonation of delay. The second is that the applicant has utterly failed to assign any sufficient cause for its non-appearance before the Court on 27.9.96.