The main legal point established in the judgment is that 'sufficient cause' for non-appearance under Order IX Rule 13 CPC should be construed liberally, considering the specific facts and circumstances of each case.

JUDGMENT

Manoj Kumar Ohri, J. (Oral)

1. By way of present appeal, the appellant seeks setting aside of the order dated 06.06.2015 passed by learned ADJ-II, Central, Tis Hazari Court, Delhi in M. NO. 46 OF 2013 filed in Suit No. 190 of 2006 whereby its application under Order IX Rule 13 read with Section 151 CPC was dismissed. Ancillary prayer seeking directions to the Executing Court to retain/withhold the banker's cheque for Rs.19,27,693.94 has also been made.

2. Mr. Shiv. K. Tyagi, learned counsel for the appellant submits that alongwith the subject application, the appellant also preferred an application under Section 5 of the Limitation Act seeking condonation of delay of about 4 years in filing the captioned application. It is submitted that though the delay application was allowed but the captioned application under Order IX Rule 13 CPC was dismissed by incorrectly recording that the application has been filed at a belated stage despite being aware of the proceedings. Learned counsel for the appellant submits that the appellant made out a good case for sufficient cause for its non-appearance before the Trial Court.

3. Before proceeding further, it is noted that in the present appeal, while respondent Nos. 1 and 2 were served and represented through a counsel however, they did not file any reply. Further, they have remained unrepresented since the last two dates of hearing. Accordingly, they are proceeded ex-parte. Insofar as respondent No. 3 is concerned, it was served through publication and was already proceeded ex-parte vide order dated 19.09.2016.

4. The facts, in a nutshell, are that respondent Nos. 1 and 2 filed a complaint seeking recovery of Rs.19,92,325.33 against respondent No. 3. It was claimed that respondent No. 3 had approached respondent Nos. 1 and 2 for placing an order for supply of 10 lac empty glass bottles. A letter of credit was taken by respondent No. 3 from the present appellant. Though respondent Nos. 1 and 2 honoured the contract by supplying the glass bottles, however the amounts remained outstanding. A suit was initially filed before this Court whereafter on account of change in pecuniary jurisdiction, it was transferred to the District Court. On said transfer, the suit was listed in the district court on 26.02.2004, and on that date notice was issued to the parties and the matter was adjourned for 17.03.2004. On the said date, the appellant was represented through one Mr. Narender Pal, Advocate however, thereafter appellant remained unrepresented resulting in passing of the ex-parte order dated 20.07.2004 as well as passing of ex-parte judgment dated 24.08.2006.

As per the appellant's case, it became aware of the ex-parte proceedings only on 15.09.2008 when a bailiff appointed by the Executing Court visited the appellant's premises. The appellant immediately appointed one Mr. Shiv K. Tyagi, Advocate who inspected the case records on 18.09.2008 and came to know about the passing of ex-parte proceedings. On 08.10.2008, the captioned application was filed alongwith an application under Section 5 of the Limitation Act seeking condonation of delay of about 4 years. The common grounds alleged in the said applications were that the appellant, after instructing Mr. Narender Pal to appear, was under a bonafide belief that it was regularly represented. It was further averred that Mr. Narender Pal however did not appear after 17.03.2004 as he had sought a Power of Attorney to appear on subsequent dates. The said communication statedly was misplaced. Resultantly, neither any reply was filed nor any Power of Attorney could be given to Mr. Narender Pal. The said averments in the application were coupled with a duly sworn affidavit of Mr. Narender Pal who explained his non-appearance by stating that, in absence of execution of power of attorney in his favour, he was under the impression that some other counsel was appointed by the Bank/appellant to represent it. The Trial Court while noting the aforesaid f