Icici Bank Limited v. Satish Kumar Sehrawat

RAJIV SAHAI ENDLAW, J

JULY 25, 2018 'gsr'/pp..

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th July, 2018 + RSA 171/2017 & CM No.23803/2017 (for stay) ICICI BANK LIMITED ..... Appellant Through: Mr. Punit K. Bhalla, Adv. Versus SATISH KUMAR SEHRAWAT ..... Respondent Through: Mr. Kanwar Udai Bhan Singh, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the order [dated 24th May, 2017 in RCA-DJ-17/ 2017 of the Court of Additional District Judge, New Delhi District] of dismissal of the First Appeal under Section 96 of the CPC preferred by the appellant as a consequence of refusal to condone the delay in preferring the First Appeal against the ex parte judgment and decree [dated 24th November, 2015 in CS No.171/2015 (Unique ID No.02403C0187732015) of the Court of Senior Civil Judge, New Delhi District] in favour of the respondent / plaintiff / decree-holder of recovery of Rs.64,829/- with interest and of injunction, directing the withdrawal of the demand of Rs.4,35,581/- made on the respondent / plaintiff / decree- holder and restraining raising of any demand on the respondent / plaintiff / decree-holder in respect of Consumer Loan Account No.LPDEL00004139492. 2. This appeal came up first before this Court on 11th July, 2017, when notice thereof was ordered to be issued and the disbursement of the decretal amount deposited by the appellant / defendant / judgment-debtor before the First Appellate Court restrained. 3. Suit Court record and First Appellate Court record requisitioned have been received. 4. On 24th July, 2018, a query as to the maintainability of the Second Appeal was made from the counsels. The said query has been decided vide separate order passed today in this appeal along with other connected appeals entailing the same legal question, and the Second Appeal has been held to be maintainable. 5. The counsel for the appellant / defendant / judgment-debtor and the counsel for the respondent / plaintiff / decree-holder have been heard and the Trial Court record perused. 6. Though no merit was found in any of the contentions of the counsel for the appellant / defendant / judgment-debtor but while going through the judgment of the Suit Court, it was found to record in para no.3 thereof that "Only defendant no.2 was summoned in the present matter. He was duly served with the summons through Deputy Branch Manager on 01.06.2015, but none has appeared for and on behalf of defendant no.2 despite service, hence vide order dated 02.07.2015, defendant no.2 was proceeded ex-parte." 7. This led to the perusal of the Suit Court record. 8. A perusal of the plaint filed by the respondent / plaintiff / decree- holder shows the title of the suit filed to be as follows: "In the matter of: Sh. Satish Kumar Sehrawat S/o Late Sh. Risal Singh R/o House no.58, Block-A, Village Nangal Dewat, Near Spinal Hospital Vasant Kunj, New Delhi-110070 ….Plaintiff VERSUS 1. ICICI Bank Ltd. Through its Chairman Regd. Office: "Landmark", Race Course Circle Vadodara-390007, Gujarat 2. The Manager ICICI Bank Ltd., Branch at Indian Spinal Injuries Hospital Vasant Kunj, New Delhi-110070 …. Defendants" 9. The suit came up before the Suit Court first on 20th May, 2015, when the following order was passed: "20.05.2015 Fresh suit for recovery received. It be checked and registered. Present: Ld. Counsel for the plaintiff. Heard. File perused. Issue summons for settlement to defendant no.2 on filing of PF / RC within a week for 02.07.2015. Sd/- (KIRAN GUPTA) SCJ-CUM-RC: NEW DELHI 20.05.2015" 10. Though the counsel for the respondent / plaintiff / decree-holder, on enquiry had stated that the Suit Court for reasons recorded, had summoned only the defendant no.2 but a perusal of the order dated 20th May, 2015 supra shows that no reason whatsoever was given for not summoning the defendant no.1 against whom also decree was claimed. A further perusal of the order sheet of the Suit Court shows that the c