Genuine confusion caused by the notice's silence on the requirement to enter defence within ten days can be considered as a valid explanation for the failure to do so.

( 1 ) THIS appeal is directed against the judgment and order dated 10th April, 2003, of the Additional District Judge, Delhi in RCA No. 7/2002, whereby the learned Judge has dismissed the appeal arising out the judgment and decree dated 5th October, 2002, passed by the learned Civil Judge decreeing the suit while not allowing the appellant to lead evidence as defence had not been entered upon by the appellant within ten days of the receipt of notice under Order 37 Rule 3, CPC. "

( 2 ) THE brief facts of the case as noted by the Additional District Judge are as follows:

"the respondent/plaintiff filed a suit for recovery of Rs. 46,000/- under Order 37, CPC. That the plaintiff and the defendant had business in other dealings for the last more than 10 years. The appellant/defendant issued a cheque in his own handwriting dated 31. 5. 2000 for Rs. 40,000/- drawn on Punjab national Bank, East Patel Nagar Branch, New Delhi in favour of the plaintiff. While issuing the aforesaid cheque the defendant also gave any undertaking dated 18. 2. 2000 vide which he undertook to pay the said sum in 4 instalments of Rs. 10,000/- each starting from Feb. , 2000 to 31. 5. 2000. That the defendant failed to make the payment of the agreed instalments. He approached the plaintiff in the first week of June to wait up till first week of November, 2000 and also agreed that he will make the payment along with interest @ 18% per annum effective from 18. 2. 2000. That the defendant however, has failed to fulfil his promise and commitment. The plaintiff deposited the cheque in the bank for encashment which was returned vide memo dated 20. 11. 2000 with the remarks insufficient funds . Thereafter, also the plaintiff contacted the defendant and requested him to make the payment along with interest as agreed upon but the defendant instead of making the payment threatened the plaintiff with dire consequences. The plaintiff even got a legal notice dated 9. 1. 2001 issued to the defendant but the defendant instead of making the payment sent a false, frivolous and vexatious reply. "

( 3 ) AFTER service of summons under Order 37, CPC, the defendant had put in appearance on 6. 8. 2001 through his Counsel Sh. Suresh Sharma, Advocate. Thereafter summons for judgment were sent to the defendant which were served upon him on 13. 10. 2001. The defendant however, filed an application for leave to defend the suit on 23. 11. 2001. Along with the said application, an application under Section 5 of the limitation Act was also moved and by the impugned judgment the said application has been dismissed and the suit was decreed.

( 4 ) THE learned Appellate Court while dealing with the explanation given by the appellant returned a finding that the same was not sufficient and therefore, the application under Section 5 of the Limitation Act could not be allowed.

( 5 ) LEARNED Counsel for the appellant submits that the notice dated 11th october, 2001, under Order 37 Rule 3, CPC was received by the appellant on 13th october, 2001. The notice merely states as under :

" Let all parties concerned attend the Court or Judge, as the case may be, on the 21st day of November, 2001 at 10. 00 O clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, intert names) for a sum of Rs. 46,600/- and for interest and costs. "

( 6 ) HE further submits that the notice does not state that the appellant was required to enter his defence within ten days of the receipt of this notice. He also submits that the appellant came to the Court on 21st November, 2001, and thereafter, engaged an Advocate. An application under Order 37rule 3 (5) read with section 151, CPC for leave to defend was prepared along with an application under section 5 of the Limitation Act. The same were filed on 23rd November, 2001. He further submits that there was no negligence on the part of the a