IMPORTANT POINT
Decree which has been passed behind back of defendant is an ex parte decree.

I.A.No.5852 of 2014 (U/O.9 Rule 13 CPC)

Vipin Sanghi, J.—I have heard learned counsels on this application preferred by the defendant under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 15.01.2014.

2. The plaintiff-Apollo International Ltd., preferred the suit in question for recovery of Rs.6,22,42,540/- along with pendente lite and future interest. Summons were issued in the suit on 24.12.1999. This Court also passed an exparte ad interim order of injunction against the defendant company restraining the defendant company from disposing of two of its properties-one situated at Okhla Industrial Area, New Delhi, and the other at Riico Industrial Area, Bhiwadi, Alwar, Rajasthan. The case of the defendant company was referred to Board for Industrial and Financial Reconstruction (BIFR). The defendant was registered as a sick company under Sick Industrial Companies Act, 1985 (SICA). Consequently, on 10.08.2001, the Court suspended the proceedings in the suit and the proceedings were adjourned sine die. In the meantime, it appears, that the tussle to wrest the management of the defendant company was in progress, and the then Managing Director - Mr.Vijay Julka of the defendant company was sought to be dislodged and a new management inducted. On 08.02.2012, in an Extra Ordinary General Meeting of the defendant company, Mr.Vijay Julka, Managing Director, was removed from directorship of defendant company forthwith, and Mr. Ramesh Dugar was appointed as a Director of the company. The change in the management was intimated to the Registrar of Companies on the same day. At that stage, the suit was being defended on behalf of the defendant by Shri H.C. Dhall, Advocate, who was appointed by the erstwhile management under Mr.Vijay Julka. On 06.09.2012, BIFR approved the bid of Mr.Ramesh Dugar as the highest bidder, and called upon him to submit a DRS with the operating agency.

3. On 16.10.2012, this Court passed an order in the present suit, holding that no permission is required under Section 22 of SICA to proceed with the suit. This order was passed on the statement of the plaintiff that the plaintiff does not press its interim applications under Order 38 Rule 5 CPC and Order 39 Rules 1 and 2 CPC for creation of encumbrance qua the assets of the defendant company. Consequently, by this order, the Court granted six weeks’ time to the defendant to file its written statement and documents. The proceedings in the suit were adjourned to 18.12.2012 before the Joint Registrar, and before Court on 21.01.2013 for framing of issues.

4. It appears that Mr.Dhall, Advocate, preferred an appeal being FAO(OS) 32/ 2013 to assail the order dated 16.10.2012. This appeal was, however, not pursued by Mr.Dhall, as he did not appear before the court and the said appeal was dismissed for non-prosecution on 13.01.2014. The proceedings in the suit, in the meantime, were adjourned as plaintiff moved an application under Order 8 Rule 1 and 10 CPC (on account of non-filing of written statement by the defendant); on account of the defendant moving an application being I.A.No.89/13 for stay of the proceedings, and, also to await the disposal of the aforesaid appeal i.e. FAO(OS) 32/2013.

5. On 15.01.2014, when the matter came up before this Court, none appeared for the defendant. No written statement had been filed on behalf of the defendant and, consequently, while invoking Order 8 Rule 10 CPC, the Court proceeded to pass a decree in favour of the plaintiff and against the defendant for the suit amount of Rs.6,22,42,540/- along with pendente lite and future interest @ 9% per annum. It is only thereafter that the present application has been moved by the defendant initially on 07.03.2014 through counsels Sibal & Co. to seek the setting aside of the said decree, claiming the same to be an ex parte decree.

6. The submission of learned counsel for the defendant/applicant is that the erstwhile management headed by Mr.Vijay Julka and the counsel instructe