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2020 Supreme(Del) 1487
IN THE HIGH COURT OF DELHI
Sanjeev Sachdeva, J.
FULLERTON INDIA CREDIT CO. LTD. - Appellant
Vs.
AFTAB AHMED - Respondent
CM(M) No. 364 of 2020
Decided On : 16-06-2020
For the Appellant :Mr. Sanjeev Sagar, Advocate.
For the Respondent:Mr. Maroof Ahmad, Advocate.
The court emphasized the importance of considering applications on their merits and not dismissing them based on technicalities.
Headnote:
Section 8 of the Arbitration and Conciliation Act, 1996 - Setting aside exparte order - Opportunity to file written statement
Fact of the Case:
The petitioner impugns multiple orders, including an exparte order and dismissal of applications under Section 8 of the Arbitration and Conciliation Act, 1996 and Order VII Rule 11 CPC.
Finding of the Court:
The court set aside the exparte order and granted the petitioner one opportunity to file a written statement and defend the suit on merits.
Issues: The issues revolved around the dismissal of the petitioner's applications and the setting aside of the exparte order.
Ratio Decidendi: The court found that the trial court erred in not considering the application under Order IX Rule 13 CPC and in not entertaining the request to set aside the exparte order on its merits.
Final Decision: The order proceeding ex-parte against the petitioner was set aside, and the petitioner was granted the opportunity to file a written statement within four weeks, subject to payment of costs.
JUDGMENT :
Sanjeev Sachdeva, J.
CM APPL. 12608/2020 (Exemption)
Allowed, subject to all just exceptions. CM (M) 364/2020 & CM APPL 12607/2020 (stay)
1. The hearing was conducted through video conferencing.
2. Petitioner impugns order dated 21.02.2018 whereby petitioner was proceeded exparte and his application under Section 8 of the Arbitration and Conciliation Act, 1996 was dismissed in default. Petitioner also impugns order dated 06.02.2020 whereby petitioner's application under Order VII Rule 11 CPC read with Section 8 of the Arbitration and Conciliation Act, 1996 was dismissed. Petitioner also impugns order dated 13.03.2020 whereby application of the petitioner under Order IX Rule 13 CPC read with Section 151 CPC seeking setting aside order dated 21.02.2018 was dismissed.
3. Learned counsel for the petitioner submits that in case one opportunity is granted to the petitioner to file his written statement, petitioner shall not press his application under Section 8 of Arbitration & Conciliation Act, 1996 and his application under Section VII Rule 11 CPC.
4. Learned counsel for the respondent submits that in view of expeditious disposal of his Suit, he has no objection in case exparte order dated 21.02.2018 is set aside to the limited extent that petitioner is granted one opportunity to file written statement and defend the suit on merits.
5. Trial court has dismissed the application under Order IX Rule 13 CPC read with Section 151 CPC by order dated 13.03.2020 primarily on the ground that the relief sought is not available under Order IX Rule 13 CPC i.e. setting aside of exparte order and the same is beyond the scope of Order IX Rule 13 CPC.
6. Trial court has committed an error in it order dated 13.03.2020 by not noticing that mere incorrect mention of the provision would not disentitle a party from relief, if it is available on merits. Trial court should have entertained the application and treated the same as an application under Order IX Rule 7 and considered whether on merits setting aside of ex-party order was warranted or not.
7. However, in view of the above facts and circumstances, order dated 13.03.2020 as also order dated 21.02.2018 is set aside to the extent that the order proceeds exparte against the petitioner. The order proceedings ex-parte is recalled.
8. Petitioner shall file written statement to the plaint within four weeks from today, subject to payment of cost of Rs. 5000/- to be paid to the respondent.
9. The petitioner is disposed of in the above terms.
10. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email.
