CS(OS) No.723/1986

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 17^th January, 2017

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CS(OS) 723/1986

THE JAMMU & KASHMIR BANK LTD.

..... Plaintiff

Through:

Mr. Dilip Pandita, Adv.

Versus

M/S MAYUR EXPORTS & ANR

..... Defendants

Through:

None.

CORAM:-

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.7177/2013 (of plaintiff u/O XXXIV R-3(2)&(3) CPC)

1. In this mortgage suit under Order XXXIV of Code of Civil Procedure,

1908 (CPC) for recovery of Rs.7,03,500/- with future interest @ 17% per

annum compounded quarterly from the date of institution of the suit till

realisation and for sale of the hypothecated and mortgaged properties for

realisation of the said amounts, on 26^th April, 2001, a preliminary decree in

the sum of Rs.7,03,500/- along with interest @ 12.5% per annum with costs

was passed and the defendants were directed to pay into the Court the

decretal amount within six months therefrom. It was further provided that if

no payment is made, the plaintiff Bank would be entitled to seek a final

decree.

2. The defendants M/s Mayur Exports and Shri Anil Kumar Sethi though

had contested the suit by filing a written statement but the judgment dated

26^th April, 2001 records that the defendants stopped appearing at the stage of

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evidence and neither cross-examined the witnesses of the plaintiff Bank nor

led evidence of their own. Hence, the preliminary decree aforesaid was an

ex-parte decree.

3. No monies as decreed were deposited by the defendants in the Court

within six months of the decree dated 26^th April, 2001 or thereafter.

4. Notwithstanding the same, the plaintiff Bank also did not apply

seeking final decree and filed this application only on 22^nd April, 2013.

5. The application came up before this Court first on 2^nd May, 2013. In

the order dated 20^th May, 2013, it was observed that the application

“apparently, is not within time”. The plaintiff Bank thereafter filed IA

No.15373/2013 under Section 5 of the Limitation Act, 1963 for condonation

of the delay in applying for final decree, though pleading that Order XXXIV

of CPC nowhere provides the period for applying for final decree. The said

application under Section 5 of the Limitation Act came up before the Court

first on 24^th September, 2013 when the same was dismissed as withdrawn.

6. This application was dismissed in default of appearance of the

plaintiff Bank on 20^th February, 2014 but was, on application of the plaintiff

Bank, on 15^th July, 2014 restored.

7. The application was thereafter adjourned from time to time.

8. On 29^th February, 2016, finding that notice even of the application had

not been issued to the defendants, notice was ordered to be issued.

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9. Notices issued to both the defendants were returned unserved with the

endorsement that the defendants have shifted from the address given. On 8^th

August, 2016, fresh notice was ordered to be issued to the defendants. The

plaintiff Bank however has not taken any steps therefor.

10. I have considered the application.

11. The plaintiff Bank has filed this application under Order XXXIV Rule

3(2)&(3) of CPC. Rule 3 of Order XXXIV of CPC provides for final decree

“in foreclosure suit”. The plaintiff Bank in the plaint is found to have titled

the suit as a “mortgage suit” “under Order XXXIV of CPC” and not

specified whether it is a suit for foreclosure of the mortgage or for sale of the

mortgaged properties. In para 32 of the plaint however the particulars of

hypothecation and mortgage are given as under:

“4.

Holambi Kalan, Delhi State.”

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12. The plaintiff Bank,