In a case, the Delhi high court allowed condonation of delay of about 10 years (3628 days, to be precise) in filing appeal before the high court against the order of the lower court. Usually, such long delay is not condoned. This order of condoning such long delay of about ten years was passed by a division bench of the high court, comprising Justices Pradeep Nandrajog and Yogesh Khanna in the case of Manju Barjatya Uma Singh (Since Deceased) Through LRs & Anr [RFA(OS) 5/2016, decided on 25 November 2016].
In the present case, in a suit invoking Order XXXVII of the Code of Civil Procedure, Ms. Uma Singh impleaded four defendants. Defendant No.1 was M/s Gem Exports. Defendant No.2 was Subhash Barjatya. Defendant No.3 was Manju Barjatya. Defendant No.4 was M/s Precious Arts & Jewels.
As per the plaint, vide three cheques dated June 19, 1995, June 30, 1995 and June 30, 1995, Rs. 1,02,50,500/- (Rupees One Crore Two Lakhs Fifty Thousand and Five Hundred only) was advanced as loan with rate of interest agreed @ 18% per annum by Ms. Uma Singh to Subhash Barjatya in the name of his sole proprietary firm : M/s Precious Arts & Jewels. The high court noted that till para 12 of the plaint the pleadings were qua liability of Subhash Barjatya. The singular suddenly turned into plural in para 13 of the plaint, wherein it is pleaded that the defendants were bound and liable to pay to the plaintiff the suit amount.
It was noted that the application seeking leave to defend filed by M/s Gem Exports and Manju Barjatya, projected a defence that in view of the pleadings, far from case being made out against them to proceed under Order XXXVII of the Code of Civil Procedure, no case whatsoever was made to even issue summons to them and therefore qua them the plaint was liable to be rejected.
The division bench of the high court noted that apparently the Single Judge did not notice the facts noted above. The impugned order noted in plural as if the cheques were to the account of defendants No.2 to 4. The impugned order overlooked the fact that in the plaint clear case pleaded was that it was Subuash Barjatya who made a request for a friendly loan to be advanced in the name of his sole proprietary firm M/s Precious Arts & Jewels. There were no pleadings in the plaint that either the partnership firm M/s Gem Exports or, in her personal capacity, Manju Barjatya stood as a guarantor and ever agreed to clear the liability of Subhash Barjatya. There was no discussion in the impugned order regarding this aspect of the matter clearly pleaded in the application filed by M/s Gem Exports and Manju Barjatya seeking leave to defend.
In view of these reasons, the division bench of the high court held that so compelling is the cause of justice in the instant case that 3628 days delay in filing the appeal is condoned. Simultaneously, the appeal was allowed. Impugned judgment and decree was set aside qua the appellant. The application seeking leave to defend filed by the appellant was not only allowed, but the plaint qua the appellant was rejected.
Read full order of the court:
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