Clerical errors in judicial orders can be corrected under Section 152 CPC; an order permitting a written statement in a summary suit under Order 37 CPC is erroneous and can be rectified.

JUDGMENT

Jayant Nath, J. (Oral)

This hearing is conducted through video conferencing.

IA No. 11096/2021

1. This application is filed by the plaintiff seeking rectification of the order dated 16.04.2021 by recalling the following part of the order:

"Defendant No. 1 may file written statement within 30 days from today. Reapplication be filed within 30 days thereafter."

2. It is the case of the plaintiff that the present suit was filed for recovery of EUR 64,751,108.73 under Order 37 CPC read with Section 2 (1)(C)(I) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 against defendant Nos. 1 and 2 on account of their failure to make payment in terms of an unconditional, and continuing guarantee dated 19.05.2011. It is further pleaded that the suit was taken up on 16.04.2021 when the defendant through counsel had entered appearance. During the hearing, this court was pleased to register the plaint as a summary suit and issued summons to the defendants. However, it is pleaded, inadvertently the aforesaid lines came up in the said order permitting defendant No.1 to file its written statement within 30 days. It is pleaded that the above direction is an inadvertent error/clerical error inasmuch as the suit had already been registered as a summary suit.

3. It is further pleaded that this court may correct the said inadvertent error/clerical error inasmuch as under Order 37 CPC, summons for judgment have to be issued against defendant No.1.

4. It is further stated that on 13.08.2021, the plaintiff had filed IA No. 10333/2021 seeking summons for judgment against defendant No. 1 in Form No.4A in Appendix B CPC which was served on the registered address of defendant No. 1/learned counsel for defendant No. 1. The said application i.e. IA No. 10333/2021 was listed on 17.08.2021 and was adjourned to 30.09.2021.

5. I have heard learned counsel for the plaintiff and learned counsel for the defendants.

6. Learned counsel for the plaintiff relies upon Section 152 CPC. He also relies upon the judgment of the Division Bench of this court in the case of Angle Infrastructure Pvt. Ltd. vs. Ashok Manchanda & Ors., (2016) 228 DLT 624 to plead that the direction to file written statement is an inadvertent error and this court may issue summons for judgment to the defendants in terms of Order 37 CPC as the suit was filed under Order 37 CPC.

7. Learned counsel for the defendants has opposed the present application. She has pointed out that in the order dated 16.04.2021, this court while dealing within IA No.233/2021 had noted the submission of the answering defendant that in view of the Corporate Insolvency Resolution approved by NCLT, there is no further liability of the defendants. She states that this aspect was noted by this court and hence, the present suit cannot be termed as a suit under Order 37 CPC.

She further states that there is untold delay on the part of the plaintiff to approach this court for rectification of the alleged error in the order dated 16.04.2021.

8. A perusal of the plaint shows that it's heading itself states that it is a suit under Order 37 CPC. Para 52 of the plaint also makes the same averment. The said para 52 of the plain reads as follows:

"The Plaintiff states and submits that it is entitled to file the present Summary Suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 as the present suit arises out of a written contract of guarantee, for a liquidated demand in money and is squarely covered under Order XXXVIII Rule 1(2)(b)(i)