Goldwin Technologies Pvt Ltd v. Electronics Component & Tuners

V.B. GUPTA, J. 13th September, 2010 ab

* HIGH COURT OF DELHI : NEW DELHI CRP No.163/2010 & CM No.16045/2010 % Judgment reserved on: 07th September, 2010 Judgment delivered on: 13th September, 2010 M/s Goldwin Technology (P) Ltd. Through Shri Gurcharan Singh, Authorized representative, 1604, Kalsi Nagar, Dholewal Chowk, Near Dada Motors, Ludhiana, Punjab. ….Petitioner Through: Mr. Abdul Kalam, Advocate Versus M/s Electronic Components and Tuners, Through one of its duly Regd. Partner, Shri Ashok Kumar Mittal, S-635-D, Nehru Enclave, School Block, Shakarpur, Delhi-110092. ….Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. As per impugned order dated 25th May, 2010, application of petitioner (defendant in trial court) filed under Order 37 Rule 3 (5) of the Code, seeking leave to defend, was dismissed and consequently suit filed by respondent (plaintiff in trial court) was decreed for a sum of Rs. 89,990/- with costs and pendent lite and future interest @ 12% per annum. Counsel fee of Rs.4000/- was also awarded to respondent. 2. The short question which arise for consideration is as to whether against final decree, Revision lies under Section 115 of Code of Civil Procedure (for short as "Code") or an appeal lies under Section 96 of the Code. 3. It is contended by learned counsel for petitioner that Revision under Section 115 of the Code is maintainable against impugned order. In support learned counsel cited decision of this Court, Shri Krishan Bhardwaj Vs. Manohar Lal Gupta, AIR 1977, Delhi 226, where leave to defend the suit under Order 37 of Code was refused by trial court, the Division Bench observed that; "Revision in the circumstances of the case is competent." 4. As per impugned order, petitioner"s application for leave to defend under Order 37 Rule 3 (5) of the Code was dismissed and consequently suit of respondent was decreed. As per Section 96 of the Code, only appeal lies against final decree. Relevant provision of this Section read as under; "S.96. Appeal from original decree- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. 2. xxxx xxxx xxxx 3. xxxx xxxx xxxx 4. xxxx xxxx xxxx" 5. In V. S. Saini and another Vs. DCM Ltd., AIR 2004 Delhi 219, leave to defend was refused in a suit filed under order 37 of the Code, the Court observed; "The Petitioners in these Revisions were Defendants in sundry summary suits who had unsuccessfully applied for leave to defend those suits. The Respondents have raised the preliminary objection questioning their very maintainability of the Revisions. It is not as if one is on virgin territory, since this question has been considered by the Division Bench of this Court in Siri Krishan Bhardwaj v. Manohar Lal Gupta, AIR1977 Delhi 226 . It had been noted in that Judgment that two Learned Judges had returned divergent opinions on this subject. B.C. Misra, J. had opined that a Revision is maintainable whereas D.K. Kapur, J. took the diametrically opposite view that only an appeal against the decree can be entertained. The Division Bench clarified that a Revision entailed only the bringing of an `error` to the notice of the High Court and conferred no further right of hearing on the aggrieved party. It went on to discuss that an order refusing to grant Leave to Defend has far -reaching consequences and would normally fall within the ambit of the phrase "any case which has been decided", bringing the adjudication to a virtual end so far as the Defendant is concerned. It held that irrespective of the decree that may have been passed, a Revision against such an order is competent. The Division Bench