Final Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: M Ex 546/23
KABUL TRADING COMPANY Vs. PT RAJAVEL
16.10.2023
Present: Sh. Dhruv Sinha, Ld. Proxy counsel for DH.
Put up for orders at 4:00 PM.
(Abhishek Srivastava)
Addl. Distt. Judge-05,
Central, THC, Delhi
16.10.2023(kd)
At 4:00 PM
Present: None.
1. This case (M. Ex. No. 546/2023) has originated
from an application filed by applicant/ decree-holder (henceforth
‘applicant’), on 14.09.2023. By way of the said application, the
applicant has sought recall of the order dated 25.08.2023 and
consequently the restoration of the M. Ex. No. 292 of 2022
(henceforth ‘M.Ex. No. 292 of 2022’), is listed today for passing of
order.
2. On inquiry by this Court, Ld. counsel for the
applicant submitted that the present application may kindly be
treated under the provisions of Sections 151 CPC.
3. Records pertaining to M. Ex. No. 292/2022 is
already attached with the present application.
4. A perusal of records of M. Ex. No. 292/2022 reveals
that:
(i) The applicant had filed the application for issuance of
fresh transfer certificate qua the decree
dated 06.06.2018 passed in CS DJ 1345/2018 in Execution
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Petition No. 6250/2018;
(ii) The Court in its order dated 18.11.2022 observed that
earlier also in M. Ex. No. 702/2019 (filed on 23.11.2019), a
fresh transfer certificate was directed to be issued (vide
order dated 07.02.2020) to the District Court, Thirvallur,
Combined Court building complex, Chinna Ekkadu, Jaya
Nagar, Thirvallur, Tamilnadu-6022001.
(iii) Thereafter, the applicant filed the present M. Ex. No.
292/2022 seeking issuance of fresh transfer certificate in the
name of the same Court on the ground that the transfer
certificate earlier issued vide 07.02.2020 in M. Ex. No.
702/2019 was not received at District Court, Thirvallur,
Combined Court building complex, Chinna Ekkadu, Jaya
Nagar, Thirvallur, Tamilnadu-6022001.
(iv) On this, since Nazir reported that the transfer
certificate to the aforesaid court in terms of order dated
07.02.2020 had already been sent by him to R & I Branch
for dispatch on 25.02.2020, a report regarding dispatch/
delivery of the same was called by Incharge, R & I Branch.
And in the meantime the applicant was given liberty to
move an appropriate application before Ld. District Judge,
District Court, Thirvallur, Combined Court
building complex, Chinna Ekkadu, Jaya Nagar, Thirvallur,
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Tamilnadu-6022001 to ascertain the status of receipt of the
aforesaid transfer certificate by the aforesaid court.
Thereafter matter was posted for further proceedings on
03.01.2023.
(v) On 03.01.2023, the court in its order sheet observed that
the Nazir has already placed on record the copy of the speed
post receipt in respect of dispatch of the transfer certificate
to the concerned court and the applicant has failed to take
steps in terms of the previous order. At the request of the
applicant, the last and final opportunity was given to the
applicant to take steps in terms of previous order and then
posted the matter for further proceedings for 25.02.2023. On
25.02.2023, the applicant again sought an adjournment for
compliance of order dated 18.11.2022 and accordingly dates
were given for 09.05.2023. On 09.05.2023, the Ld. presiding
officer was on leave and as such the date was given for
26.07.2023.
(vi) Once again on 26.07.2023, a request for adjournment
was made on behalf of the applicant for compliance of Order
dated 18.11.2022. Last and final opportunity was given to
the applicant subject to an adjournment cost of Rs. 5000/- to
be deposited by the applicant with DLSA (Central) with
specific directions that failing which the application shall be
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dismissed in default for non-prosecution on the next date of
hearing ie. 25.08.2023.
(vii) A perusal of the order sheet dated 25.08.2023 reveals
that in pre-lunch session, no one appeared for the applicant
and matter was directed to be taken up again at 2:00 PM. At
2:00 PM, proxy counsel for the applicant appeared through
VC and requested for an adjournment for compliance of the
previous order. On this, the Ld. predecessor of this court,
while observing that no grounds are made out for grant of
any further opportunity to the applicant, dismissed the
application in default for non-prosecution.
5. Hence, this present application.
6. The arguments qua the aforesaid application was
heard, on 06.10.2023. The Ld. counsel for the applicant had
submitted that the aforesaid application should be allowed by this
court (a) because the clerk of the counsel for the Applicant had
erroneously noted the wrong date in his diary as 28.08.2023 and
when the team of counsel was checking the orders for forthcoming
matters to update the diary then the counsel for applicant got to
know that the matter was fixed for 25.08.2023 instead of
28.08.2023; and (b) because the counsel for the Applicant
immediately appeared through VC before this Court alongwith
report of the Hon’ble Court of Thiruvallur, Chennai and even
emailed the report/ status of the application filed in the Court of
Thiruvallur, Chennai to the reader of this Court.
7. During the arguments, ld proxy counsel for applicant
filed proof of the filing of the application before the Court
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at Thiruvallur on 20.06.2023 and order dated 07.08.2023 passed by
the concerned court at Thiruvallur.
8. After considering the submissions made by Ld. counsel
for the applicant, this court is of opinion that the aforesaid
application is liable to be allowed on account of the following
reasons:
9. Firstly, The application is dismissed in default on
25.08.2023 for non-prosecution for not complying with the previous
order dated 18.11.2022 whereby applicant was directed to move an
appropriate application before Ld. District Judge, District Court,
Thirvallur, Combined Court building complex, Chinna Ekkadu,
Jaya Nagar, Thirvallur, Tamilnadu-6022001 to ascertain the status
of receipt of the aforesaid transfer certificate by the aforesaid court.
It is contended by the Ld. Counsel that on 25.08.2023 when the
matter was re-called, the Applicant appeared through VC before this
Court alongwith report of the Hon’ble Court of Thiruvallur,
Chennai and even emailed the report/ status of the application filed
in the Court of Thiruvallur, Chennai to the reader of this Court.
During the hearing of the present application, the said documents
were again filed by the Applicant. Perusal of documents show that
one I. A. was filed in E.P No. 6250 of 2018 on 20.06.2023 before
the Hon’ble Court at Thiruvallur, which came to be dismissed on
07.08.2023 by the concerned Ld. Judge with remark ‘1) How this
petition is maintainable, since EP is not on file of this Court. 2)
Hence Returned.’ It clearly shows that the Applicant had already
taken the steps in terms of order dated 18.11.2022 when the
application of the applicant was dismissed in default for non-
prosecution by this court on 25.08.2023.
10. Secondly, the applicant was diligent in filing the
present application as the M. Ex. No. 292 of 2022 was dismissed
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on 25.08.2023 and the present application M. Ex. No. 546/2023 was
filed on 14.09.2023.
11. Thirdly, taking cue from reasoning given by the
Hon’ble Delhi High Court in S.P. Jaiswal V/s C.M. Sharma; 44
(1991) DLT 188, this Court is of view that a dismissal of an
execution application in default for non-prosecution when not
strictly covered by Order 21 Rule 105 CPC, is a dismissal in
default under section 151 CPC and in such a case the Court can, in
exercise of its inherent power under that section can restore the
application.
12. In view of aforesaid reasons, the application filed by
applicant on 14.09.2023, considered under Section 151 CPC,
seeking recall of the order dated 25.08.2023 passed by this Court in
M. Ex. No. 292 of 2022, and consequently the restoration of the M.
Ex. No. 292 of 2022, is allowed. The M. Ex. No. 292 of 2022 is
restored to its original number.
13. At this stage, it is seen that the applicant has also
filed an application for waiver of cost of Rs. 5000/- imposed vide
Order dated 26.07.2023 in M. Ex. No. 292 of 2022 stating that it
was not an easy task for the counsel of Decree Holder/ applicant to
get in contact with the local lawyer of the Hon’ble District Court of
Tiruvallur and the non compliance of order dated 18.11.2022 was
neither deliberate nor intentional. A bare perusal of record shows
that on every dates given after 18.11.2022 in M. Ex. 292/ 2022 i.e.
on 03.01.2023, 25.02.2023, 09.05.2023, 26.07.2023 and of
25.08.2023, some proxy counsel had appeared for the applicant and
sought for an adjournment. No reasons whatsoever assigned by the
proxy counsel for delaying in compliance. Neither the main counsel
for the applicant nor the applicant in person ever had appeared
before the Court to apprise the reasons for non-compliance of
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the order dated 18.11.2022. Accordingly, no ground is made out for
waiver of cost of Rs. 5000/- imposed vide Order dated 26.07.2023.
Applicant/ DH is directed to deposit the cost of Rs. 5000/- with the
DLSA (Central) within two weeks from today.
14. The Ahlmad is directed to place a copy of this order
in the file of M. Ex. No. 292 of 2022 and thereafter, consign this file
to the record room.
15. The file of M. Ex. No. 292 of 2022 will be taken up
for further proceedings, on 17.11.2023.
(Abhishek Srivastava)
Addl. Distt. Judge-05,
Central, THC, Delhi
16.10.2023(kd)
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