VIPIN SANGHI, J.

( 1 ) PLAINTIFF has instituted the above suit under Order 37 of CPC, for recovery of Rs. 24,75,607 with interest thereon. Plaintiff is engaged in the business of manufacturing and sale of various types of jersey/polyster, cotton clothes etc. The defendant No. 1 M/s. Kalatex is a partnership firm with defendant No. 2, 3 and 4 as partners carrying on the business of manufacturing readymade garments.

( 2 ) DEFENDANT No. 2 is stated to be the managing partner of defendant no. 1, who conducted business transactions on behalf of the defendant firm with the plaintiff. The defendants ordered and plaintiffs supplied, from time to time, various types of jersy polyster cotton fabrics to the defendants. These supplies were duly acknowledged by the defendant firm who received these goods on credit. Payments were being made from time to time. However, the defendants did not make the payment for all the supplies and various cheques issued by the defendants towards payment of the outstanding dues were dishonoured upon presentation. The defendants also acknowledged their liability as on 31. 3. 98 vide fax communication dated 22. 8. 98.

( 3 ) THE suit was registered and summons were issued on 5. 9. 2001 to the defendants to be served in the form prescribed under Order 37 Rule 2 (3) cpc. Summons were received at the office of Defendant No. 1 on 22. 11. 2001.

( 4 ) THE defendant No. 1 however entered appearance only on 11. 12. 2001, along with the aforesaid application (being IA No. 11614/2001) seeking condonation of delay in entering appearance. The defendant firm states that summons were received by one Mr. Joseph Thomas, who was an ex-employee of the firm on the date on which summons were served. He had, on that day, come to the defendants office to collect his experience certificate. It is further averred that since the office of the defendant firm was closed, the post man who had come to deliver the summons handed the same to Mr. Joseph thomas despite his resistance/refusal to accept the same. The summons so served remained with Mr. Joseph Thomas and were handed over to the security guard of the firm by him only on 8th of December 2001 when he again visited the defendant's premises. The defendant firm entered appearance on the 11th of December 2001 "under protest" claiming that the summons were not properly served. In any event, delay of 9 (nine) days is sought to be explained on these averments and condonation sought. The said application is accompanied by the affidavit of Mr Joseph Thomas himself.

( 5 ) THE defendant No. 4 has also filed an application for seeking condonation of delay in filing his appearance, being. A. No. 7624/2003, inter alia, on the ground that he had no knowledge of the pendency of the suit, and the order recording that the defendant No. 4 was deemed to be served as defendants 1, 2 and 3 stood served was itself erroneous as defendant. No. 1 was never served in accordance with law, and service on defendants 2 and 3 was deemed. to be effected on the basis of alleged service on defendant No. 1. It is also stated that the address of defendant No. 4 had been wrongly given in the plaint, and defendant No. 3 was dead even before the suit was filed by the plaintiff. The plaintiff has accepted this position and filed an amended memo of parties on record on 19. 8. 2004. The partnership firm ceased to exist upon the demise of defendant No. 3, and therefore defendant no. 4 could not be deemed to have been served merely because defendant no. 1 firm is assumed (though wrongly) to have been served. The address of defendant No. 4 was deliberately wrongly given by the plaintiff in his plaint. Thus, if it was held that the defendant No. 1 was not served properly then consequently the deemed service on other defendants would also be bad and delay ought to be condoned.

( 6 ) THE defendant firm was ordered to produce Mr Joseph Thomas in court. However, despite several opportunities the defendant failed to do so. The