CS(COMM) 8/2021 Page 1 of 11

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 17.09.2021.

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CS(COMM) 8/2021

AXIS TRUSTEE SERVICES LIMITED.

.... Plaintiff

Through

Mr.Anuj Berry, Mr.Vaijayant Paliwal,

Ms.Anusha Ramesh, Ms.Moulshree

Shukla, Mr.Vinayak Chawla and

Mr.Daksh Kadian, Advs.

Versus

BRIJ BHUSHAN SINGAL & ANR.

..... Defendants

Through

Ms. Ranjana Roy Gawai, Ms.Vasudha

Sen

and

Ms.Aayushi

Singh,

Advocates

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

This hearing is conducted through video conferencing.

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:-

IA No. 11096/2021

“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

2021:DHC:2922

CS(COMM) 8/2021 Page 2 of 11

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

2021:DHC:2922

CS(COMM) 8/2021 Page 3 of 11

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 rectifi