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2019 Supreme(Del) 1918
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATEEK JALAN, J.
Parkland Properties Ltd. — Appellant
Versus
New Rajput Cooperative Group Housing Society — Respondent
Civil Suit (Comm) No. 205 of 2016
Decided on : 13-09-2019
Advocate Appeared:
Harish Uppal, Adv., Tileshwar Prasad, Adv.
Special circumstances under Order XXXVII Rule 4 of the CPC must be exceptional and extraordinary, and not issues that could have been raised at earlier stages of the proceedings.
Headnote:
Order XXXVII Rule 4 - Application to Recall Orders - CPC - [Order XXXVII Rule 4 of the CPC]
Fact of the Case:
The defendant filed an application under Order XXXVII Rule 4 of the CPC to recall orders dated 16.04.2019 and 07.08.2019. The defendant sought to invoke special circumstances to set aside the decree and allow the suit to proceed.
Finding of the Court:
The court found that the defendant failed to establish any ground for exercising the power conferred by Order XXXVII Rule 4 of the CPC. The court rejected the defendant's attempt to re-agitate issues that could have been raised at earlier stages of the proceedings.
Issues: The issues revolved around the defendant's attempt to invoke special circumstances to set aside the decree and recall previous orders.
Ratio Decidendi: The court emphasized that special circumstances under Order XXXVII Rule 4 of the CPC must be exceptional and extraordinary, and not issues that could have been raised at earlier stages of the proceedings. The court also highlighted that the purpose of Order XXXVII of the CPC is to provide for expeditious disposal of suits by summary proceedings.
Final Decision: The application was found to be entirely without merit and was dismissed by the court.
JUDGMENT :
Prateek Jalan, J.
I.A.12009/2019 (under Order XXXVII Rule 4 of the CPC for recalling the orders dated 16.04.2019 and 07.08.2019) in CS(COMM) 205/2016
1. This is an application filed by the defendant in the present suit under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 ["CPC"]. The following reliefs are sought by way of this application:-
"A. That in view of the above facts and circumstances at this stage it is only humbly prayed that Rs.20,00,000/- paid may be taken as payment made by the time as may deem to have been extended by the Hon'ble Court and allow suit to proceed in special facts and circumstances;
B. The leave to defend ought to have been given unconditionally as is obvious from relevant paras 6 and 12 of the agreement of 22/05/2011, and other infirmities, on the basis of which this suit was filed as also arbitration issue was raised but under O7, R11 CPC, instead of u/Section 8 of the Arbitration Act, and other infirmities and as such recall orders dated 16/04/2019 and 07/08/2019."
Facts
2. The suit was filed by the plaintiff on 13.01.2015 under Order XXXVII of the CPC for a money decree against the defendant in the sum of Rs. 1,10,00,000/- alongwith interest thereupon. Summons were issued by an order dated 29.01.2015, although inadvertently treating the suit as an ordinary suit. The defendant filed a written statement on 28.04.2015. When the aforesaid error came to light, an order dated 01.05.2015 was passed, modifying the order dated 29.01.2015 and recording that the defendant had already entered appearance. The defendant was treated as having appeared under Order XXXVII of the CPC, and the plaintiff was given liberty to take further steps.
3. The defendant thereafter filed an application under Order VII Rule 11 of the CPC in which it was inter alia contended that the transaction between the parties was covered by an arbitration clause contained in an agreement dated 22.05.2011. The defendant's plea to this effect was rejected by an order dated 04.03.2016, leaving it open to the defendant to make an appropriate application under Section 8 of the Arbitration and Conciliation Act, 1996, if so advised. The application under Order VII Rule 11 of the CPC was dismissed by the said order with costs.
4. Upon the plaintiff filing an application for issuance of summons for judgment, the defendant made an application for leave to defend the suit. That application was allowed by an order dated 16.04.2019, subject to payment of the sum of Rs. 20,00,000/- to the plaintiff within eight weeks. The operative portion of the order is reproduced below: -
"Consequently, defendant-society is granted leave to defend, subject to payment of Rs. 20,00,000/- (Rupees 1,10,00,000/- minus Rs.90,00,000/-) to the plaintiff within eight weeks. Needless to say, if the aforesaid payment is not made within the stipulated period the suit shall stand decreed without any further orders of this Court. Accordingly, present application stands disposed of."
5. The defendant's petition for review of this order was dismissed by an order dated 31.05.2019. The order dated 16.04.2019 was also challenged by the plaintiff before the Division Bench in FA(OS)(COMM) 167/2019. The Division Bench came to the conclusion that there was no error in the order dated 16.04.2019 and dismissed the appeal in limine.
6. The defendant, at this stage of the proceedings, filed I.A. 10670/2019 seeking an extension of time by six weeks for making payment to the plaintiff in terms of the order dated 16.04.2019. That application was rejected by an order dated 07.08.2019. The Court noticed that the consequence of non-payment of the amount of Rs. 20,00,000/- by the defendant to the plaintiff, within the time granted by the order dated 16.04.2019, was incorporated in the said order itself. It is recorded in the order dated 07.08.2019 that the defendant had admittedly not sought any extension of time for making the payment before the Division Bench, and that the Division Be
