Inder Sain Jain vs M/s Satish Metal Indusries

Gokal Chand Mital, J.—The Respondents borrowed total amount of Rs. 28,000/- from the Petitioner from time to time and repaid only Rs. 6000/. All payments were made by the Petitioner to the Respondents by cheques. When the remaining amount was not paid, on 11.12.1984 the Petitioner filed a suit for recovery of Rs. 25,295/- under Order 37 of the CPC (for short the Code''). The Respondents applied for leave to defend, which was allowed on 18th April, 1985, subject to the condition of depositing Rs. 6000/- on or before 29th April, 1985. On 27th April, 1985, the Respondents filed an application for extension of time and before that application could be heard and decided, on 3rd May, 1985, the Respondents filed an application u/s 10 of the Provincial Insolvency Act (for short ''the Act'') and on 4th May, 1985 obtained an ex parte order from the Insolvency Judge, who stayed the recovery of the amount. In view of the orders passed by the Insolvency Court, the proceedings in the suit were stayed sine die vide order dated 17.7.1985. The Insolvency Judge vide order dated 21st August, 1985 vacated the ex-parte order dated 4th May, 1985 on the move of the Petitioner and thereafter the Petitioner applied to the trial Court for restoration of the suit and for dismissing the application of the Respondents for extension of time. Adverse order was passed by the trial Court on 3.6.1986, which was successfully impugned by the Petitioner in this Court and this Court by order dated 12th November, 1986 directed the trial Court to proceed with the matter expeditiously.

It is thereafter that the trial Court considered the matter and by order dated 3rd February, 1987 granted extension of time to the Respondents for payment of Rs. 6000/-. Within the extended time the amount of Rs. 6000/- has been pa d but the Petitioner has impugned the order in this revision.

Shri M L. Sarin, Senior Advocate, urges that the facts of the case do not justify the extension of time even if it is to be conceded that the Courts have the inherent powers to extend the time in a suitable case. He further urges that it is not disputed that payment was made by the Petitioner to the Respondents by cheques and since they did not comply with the order for depositing Rs. 6000/- the extension of time for nearly about a year and 9 months was not justified particularly because of the dilatory tactics adopted by the Respondents in moving one Court or the other. It is also argued that the real points were not kept in view by the Courts below in extending time and rather on the basis of extraneous matters time was extended.

4 After hearing the learned Counsel for the parties and on consideration of the matter, I am of the view that it was not a St case for granting extension of time The suit was filed in December, 1984 and on 18th April, 1985 the Respondents were given leave to defend subject to the consition of depositing Rs. 6000/- on or before 29th April, 1985. Two days before the expiry of time an application for extension of time was filed and before that application could be decided, the Respondents moved the Insolvency Court and obtained the ex-parte order of stay. This clearly shows the dilatory tactics. It appears that the Respondents by misrepresentation had obtained the stay order from the Insolvency Court, which order was vacated on the move of the Petitioner and since in the meantime the file of the suit was consigned sine die, there was delay for which the Petitioner was not responsible. The Court below has noticed that Som Parkash Defendant had died in the meantime and his legal representatives were to be brought on record which took some time. Again for this the Petitioner cannot be held responsible. Accordingly, 1 am of the view that it is not a fit case in which discretion could be exercised in favour of the Respondents for extending the time.

The counsel for the Respondents even before me argued that the Respondents have no money to pay. If that is so, it would be all the more reason not to extend further time because even if the Petitioner succeeds in the suit, he will be bothered in the execution. All the same I show further indulgence to the Respondents that in case they deposit the balance amount claimed in the suit i e. Rs. 25295/- minus Rs. 6000/- plus the interest on the balance from the date of suit till date of deposit, with the trial Court, within two months from today, they would be entitled to defend the suit and in case they fail to deposit, it will be deemed that leave to defend was declined and the trial Court would proceed in accordance with the provisions of Order 37 of the Code to pronounce the order without any delay.

In case the deposit is made by the Respondents, the amount would be deposited in special FDR for a period of one year to be renewed for a similar period in case the suit remains pending for a longer period. The benefit of interest on the special FDR of course would go to the successful party. The revision sands disposed of according. The parties through their counsel are directed to appear before the trial Court on 7.3.1988.