Vipin Bhardwaj v. Ashok Bhalla

VINOD GOEL, J. OCTOBER 30, 2018 p'ma

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 30.10.2018 + CM(M) 363/2018 VIPIN BHARDWAJ ..... Petitioner Through: Mr. Zahid Ali, Advocate. versus ASHOK BHALLA ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE VINOD GOEL CM APPL 12626/2018 (for Exemption) 1. Allowed, subject to all just exceptions. CM APPL 12628/2018 (for condonation of delay) 2. For the reasons stated in the application the delay of 13 days in re-filing the petition is condoned. The application is disposed of. CM(M) 363/2018 & CM No. 12627/2018 (for stay) 3. The order dated 20.12.2017 passed by the Court of learned Additional District Judge, West District, Tis Hazari Courts, Delhi ('ADJ'), dismissing the appeal of the petitioner/appellant/defendant against the order dated 13.10.2016 in MCA No. 45216/2016 declining his application under Order IX Rule 13 of the Code of Civil Procedure, 1908 ('CPC'), is the subject matter of challenge in this petition filed under Article 227 of the Constitution of India. 4. The Respondent/plaintiff filed a suit for recovery of Rs.2,11,533/- on 16.04.2007 against the petitioner before the learned 'ADJ'. After filing the written statement, the issues were framed by the learned Civil Judge on 07.07.2010. The petitioner stopped appearing thereafter and he was proceeded ex-parte on 18.04.2013. The suit of the respondent for recovery of Rs.2,09,333/- with interest @ 8% P.A was decreed ex-parte in his favour and against the petitioner on 06.08.2013. 5. The petitioner filed an application under Order IX Rule 13 read with Section 151 CPC on 15.04.2015 for setting aside the ex-parte judgment and decree dated 06.08.2013. 6. The learned counsel for the petitioner contends that the petitioner is one of the Directors of M/s Logistics Linkage (India) Pvt. Ltd. and the said company through its Attorney filed a suit for recovery of Rs.4,60,000/-, bearing No.90/2008, against the son of the respondent. He urges that the matter was amicably resolved between the parties orally and it was agreed that neither party shall pursue the respective suits. He submits that under impression of settlement, the petitioner stopped appearing in the present case. He also contends that the suit filed by his company was dismissed in default on 10.09.2008. Restoration application filed on 02.02.2009 was also dismissed in default on 16.11.2010. The second application for restoration was dismissed in default on 01.09.2011. Third application for restoration was dismissed on 10.01.2013 when neither party appeared due to an oral settlement. He further submits that the petitioner came to know only on 05.04.2015 from the son of the respondent that ex-parte judgment & decree has been passed against him, upon which he immediately filed an application for setting aside the ex-parte judgment and decree dated 15.04.2015. 7. While dismissing the application under Order IX Rule 13 CPC, the learned ADJ has given his findings:- "In the present suit for recovery of a sum of Rs. 2,11,533/-, defendant was proceeded ex-parte by my Ld. Predecessor vide order dated 18.04.2013 and thereafter after recording ex-parte evidence an ex-parte judgment was pronounced against the defendant on 06.08.2013 in which defendant was ordered to pay the above sum alongwith interest @ 8%. Plea of Ld counsel for the defendant that there was oral agreement between the party not to pursue the cases filed against each other does not inspire any confidence. When there are cross cases pending between the parties, an ordinary prudent person would not orally settle with the other without the same be reduced into writing and in case it is orally settled he would definitely ensure that the same is withdrawn. It is unbelievable that a person stops appearing in a case without even bothering to know about the fate of the case. He was only required to make a single phone call to his counsel to know the status of the present suit. Defendant cannot put appearance in a case as per his own convenience an