IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT :  PAYMENT OF RENT

 

FAO(OS) No.290/2003

       

Date of Decision: October 28 , 2005

            

The Central Bank of India.                                         Appellant

 

                                                         Through: Mr.Vijay Gupta, Advocate.

 

                                             Versus

 

Shri Rane Parkash and others.                                      Respondents

 

                                                                       Through Mr.N.N.Aggarwal, Advocate.

                                                               

 

HON'BLE MR. JUSTICE VIJENDER JAIN

HON'BLE MS. JUSTICE REKHA SHARMA

 

 

REKHA SHARMA, J.

 

1.      Here  is yet  another case where a tenant on the grounds untenable, is trying to avoid its liability to pay full rent due for the premises let.  The tenant is the Central Bank of India.  The landlords are  Shri Rane Parkash, Shri Rajiv Prakash and Smt.Shan Parkash. 

 

2.      It so happened that on December 30, 1998, a registered 'Rent Deed' was executed between the parties.  With a  view to remove any ambiguity and to delineate the premises actually let, a site plan was attached which formed an integral part of the 'Rent Deed'.  As per the terms of the 'Rent Deed' the premises let were known as 'Japan Hall' and 'Gujarat Hall'. Admittedly, the monthly rent was agreed to be Rs.50/- per sq. ft. Since as per the landlords the Bank was in arrears of rent they filed a suit for recovery of Rs.34,98,130.00 claiming the same to be due.  The suit was instituted under Order XXXVII of the Code of Civil Procedure, 1908 and the Bank was sent summons of the same. Upon service of summons the Bank entered appearance on February 15, 2002, i.e., within 10 days of the service and furnished two addresses for further service of summons upon it.  One of the addresses given was of the Advocate representing the bank, i.e., Shri R.N.Gupta & Company, 121, Lawyers Chambers, Delhi High Court, New Delhi and the other of the office of the Bank situated at  72, Janpath, New Delhi. Thereafter, the  landlords  took out  summons for judgment under Order XXXVII Rule 3 of the Code of Civil Procedure which was served upon the bank through its Advocate on May, 17 2002 and through its Assistant General Manager at its office on May 18, 2002. Two days thereafter, i.e., on May 20,2002 plaintiff No.3 in the original suit, namely, Smt.Shan Parkash died.  Accordingly,  an application under Order XXII Rule 3 read with Section 151 of the Code of Civil Procedure was moved on behalf of other plaintiffs for brining on record her legal representatives.  Notice of the said application was served on the Bank but no reply to the same was filed.  Hence, vide order dated January 24, 2003, the application was allowed and the legal representatives of deceased plaintiff No.3 Smt.Shan Parkash were brought on record. It was after more than 10 months of service of 'Summons for Judgment' on the bank that it applied for leave to defend. This was done by filing an affidavit on March 20,2003 alongwith an application under Order XXXVII Rule 3 (5) &  (7) read with Section 151 of the Code of Civil Procedure for  condonation of delay in seeking leave to defend.

 

3.      The  learned Single Judge, after hearing the matter, and finding no ground to condone the delay in applying for leave to defend, dismissed the application for condonation of delay and proceeded to pass a decree in favour of the landlords and against the Bank taking the area of the premises to be as delineated in the site plan. Hence, this appeal.

 

4.      The learned counsel for the Bank has pressed this appeal on three grounds. First,  that the summons served upon it were not in accord with the provisions of Order XXXVII of the Code of Civil Procedure, and for that reason, the suit though instituted under Order XXXVII ought not to have been treated as being under the said provision. Secondly, the application seeking  condonation of delay ought to have been allowed. And thirdly, that the Bank was  liable to pay rent only for that much of the area  as mentioned in the 'Rent Deed', and not for the area  as shown in the site plan.

 

5.      It is provided in sub-rule (2) Rule 2 of  Order XXXVII of the Code of Civil Procedure that when a suit is instituted under the said Order, summons of its institution shall be sent to the defendant in Form No.4 of Appendix B of the Code of Civil Procedure or in such other Form as may be prescribed from time to time. It is further provided in sub-rule (4) Rule 3 of Order XXXVII that 'Summons for Judgment' shall be sent in Form No.4A of Appendix B of the Code.

                    Were the summons served in the present case  in  the prescribed Form ?

 

6.      A peep into the record of the suit would go to show that the summons which were served upon the defendant were in the Form prescribed under Order XXXVII sub-rule (2) Rule 2 and under Order XXXVII Rule 3 sub-rule (4) of the Code of Civil Procedure except that it was not mentioned on  top of the same that they were summons in a summary suit. Barring this omission, both the summons were in the prescribed Form. As has been noticed above, the Bank upon service of  summons,  entered appearance within 10 days of service and gave two addresses for service of further summons on it.   This goes to show that the Bank was fully aware of the fact that it was defending a suit under Order XXXVII of the Code of Civil Procedure or else it would not have entered appearance within 10 days of service of summons. Having done so, it is not open to the Bank  to contend that it did not apply for leave to defend merely because it was not mentioned on the summons served upon it that they were summons in a summary suit.   It was expected and rather it was the duty of the defendant to read into the summons the contents of the provision of Order XXXVII Rule 3 sub-rule (4) of the Code of Civil Procedure which lay down that the leave to defend should be applied within 10 days of the service of 'Summons for Judgment'. The Bank cannot be allowed to take refuge under a technicality that the summons served upon it did not bear the 'caption' that they were summons in a summary suit. We find no merit in the objection raised and the same is therefore rejected.

 

7.      The appellant Bank in a bid to cover up its  lapse in not applying for leave to defend within 10 days of service of 'Summons for Judgment' contended that one of the plaintiffs, namely, Smt.Shan Parkash, having died  the suit could not have proceeded until the legal heirs of the said plaintiff were brought on record. It was therefore contended that it was  under no obligation to apply  for leave to defend within the  stipulated  period of 10 days after service of 'Summons for Judgment'. However,  we remain unconvinced.   

 

8.      The mere fact that one of the plaintiffs had died and an application for bringing on record her legal representatives was pending  could not have absolved the Bank from filing an application for leave to defend within the time prescribed by the Code of Civil Procedure. With the death of one of the  plaintiffs the suit did not come to an end. There were two other plaintiffs who were still  alive and were competent to continue with the suit.  In any case, the said death in no way changed the nature of the suit nor did it enlarge the time for applying for grant of leave. There was thus no basis for the Bank to have formed an impression that it was not required to apply for leave to defend till the legal representatives of the deceased plaintiff were brought on record. In this context there is one more fact which needs to be highlighted and it is the order dated September 6, 2002  passed by the Joint Registrar of this court. This is how it reads:-

"        IA No.7985/02 (Under O.XX!! R.C CPC on the death of plaintiff no.3).

 

         Learned counsel for the defendant accepts notice of the IA. Copy supplied. Let reply be filed within a period of two                 weeks.  Rejoinder, if any, be filed within a period of one week thereafter.

 

         S.No.36/2002

 

9.      Defendant is served with the summons for judgment on 18th May, 02. Summons for judgment have also been served upon the defendant's counsel on 17th May, 02. Summons for judgment have since been duly served upon the defendant, defendant has failed to file leave to defend and the statutory period of ten days from the date of service of summons has since expired.  Matter be placed  before the Hon'ble Court for appropriate orders for 22nd October, 2002."

 

         The above order shows that the Bank which was represented by a counsel knew as far as back as on September 6, 2002 that the leave to defend application was to be filed within 10 days of May, 17 2002 or May, 18 2002. Inspite of having been specifically made aware of the same the Bank slept over the matter for as long as more than 10 months and applied for leave to defend only on March 20, 2003. The Bank has furnished no justification for such delayed reaction. There is therefore no reason for us to condone the delay in the Bank applying for leave to defend.

10.    This brings us to the question whether the learned Single Judge was justified in decreeing the suit for the area specified in the site plan. The Bank contends that the total area let out is 4725 sq.ft. The site plan belies this stand. As per the site plan the area let was 5275 sq.ft. It bears the signatures of the parties.  It  was  made  part  of  the 'Rent  Note'  in  token  of  its  correctness.  Its authencity is not in dispute. If  the  learned  Single Judge has sworn by it he cannot be faulted. 

 

11.    In order to obtain leave to appear and defend a suit instituted  under  Order XXXVII of the Code of Civil Procedure a defendant has to set up a cogent  defence. The  principle is as old as the hills.  Here, the  defence set up is all moonshine. In any case the application for leave to defend was delayed by more than 10 months and as noticed above there is no ground to condone the same. This is what was felt by the learned Single Judge. This is what we also feel. What else remains to be said except that the appeal is without merit. We say so and dismiss the same with costs quantified at Rs.5,000/-.

                               

                                                                                   Sd./-

                                                                       REKHA SHARMA, J.

 

 

                                                                                    Sd/-

                                                                        VIJENDER JAIN, J.

October 28 , 2005