SH. ANURAG MAHAJAN vs TUMLARE TRAVELS PRIVATE LIMITED

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 91/2024 & C.M.Nos.36072-36074/2024
ANURAG MAHAJAN ….. Appellant Through: Mr. Ankit Rana with Mr.Tushar Rohmetra, Advocates. versus
TUMLARE TRAVELS PRIVATE LIMITED ….. Respondent
Through: Ms. Apoorva Jain, Mr. Ajay Bhargava and Mr. Arvind Ray, Advocates.
% Date of Decision: 02nd July, 2024
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

JUDGMENT MANMOHAN, ACJ : (ORAL)
1.
Present appeal has been filed challenging the order dated 22nd March, 2024 passed by the learned Single Judge in IA No. 5289/2022 (Application filed on behalf of the Appellant under Order IX Rule 13 CPC for setting aside Judgment/Decree dated 15th November, 2019) and IA No. 5291/2022 (Application filed on behalf of the Appellant under Section 5 of Limitation Act, 1963 for condonation of 89 days’ delay in filing I.A. 5289/2022) in CS (OS) 662/2017 whereby the learned Single Judge dismissed the applications filed on behalf of the Appellant.

2.
Learned counsel for the Appellant states that the respondent filed the subject suit for recovery of Rs. 7,42,23,500/-along with interest @ 18% per

annum. He states that this Court issued notice to the defendants including the appellant on 11th December, 2017 in the said suit and ordered parties to maintain the status quo qua the properties.

3.
However, on 19th July, 2018, the Court observed that the appellant was not properly served in the matter and subsequently, on 14th August, 2018, the appellant was duly served. It is the Appellant’s case that he engaged Mr. Vineet Malhotra, Advocate, as his counsel, who assured the Appellant that he would file a written statement on behalf of the Appellant within the stipulated time. He states that the right of the Appellant/defendant no.1 to file a written statement was closed on 13th November, 2019 and vide order dated 15th November, 2019, a judgment/decree was passed against the Appellant.

4.
He states that his counsel, Mr. Vineet Malhotra informed him that a judgment/decree had been passed against him in the above-stated suit. He states that the Appellant, for the first time, was informed that no reply/written statement was filed by the counsel of the Appellant and also that that no one appeared on his behalf when the said judgment/decree was passed.

5.
He states that the Appellant promptly requested his counsel for a copy of the judgment. Subsequently, on 30th November, 2019, Mr. Vishal, Advocate (an associate of Mr. Vineet Malhotra) applied for the certified copy and the same is apparent from the case history of the subject Suit. He states that the certified copy was received sometime in the first week of March 2020, as conveyed to the appellant by the counsel.

6.
He states that considering the fact that the appellant received the copy in the first week of March 2020, there is no delay in filing the application

under Order IX Rule 13, as the Appellant had filed the application in the month of April 2022 i.e. within 90 days in accordance with the order of the Supreme Court in Suo Motu W.P.(C) 3 of 2020.

7.
He lastly emphasises that the appellant has filed a complaint against Mr. Vineet Malhotra before the Bar Council of Delhi.

8.
Per contra, learned counsel for the respondent/plaintiff, who appears on advance notice, states that the alleged complaint filed by the appellant against Mr. Vineet Malhotra, Advocate is not in accordance with law. She states that neither it has been filed in the proper format under the Bar Council of India Rules, nor the complaint has been filed under the CPC.

9.
She further states that the appellant had never applied for a certified copy of the impugned judgment and order dated 15th November, 2019.

10.
She also emphasises that it was only the respondent/ plaintiff who had applied for a certified copy of the impugned judgment and order dated 15th November, 2019.

11.
She has also drawn the attention of this Court to the findings given by the learned Single Judge in the impugned order.

12.
Having heard learned counsel for the parties, this Court is in agreement with the findings of the learned Single Judge that the averments made by the appellant with regard to gross negligence on the part of Mr. Vineet Malhotra are not borne out from the record. Neither any vakalatnama in favour of Mr. Vineet Malhotra has been placed on record, nor any payment receipt issued by Mr. Vineet Malhotra has been annexed. No appearance on behalf of Mr. Vineet Malhotra has even been recorded in any of the orders.

13.
In fact, Mr. Vishwaman, Advocate, had appeared on behalf of the Appellant before the learned Single Judge on 27th February, 2018. Thereafter, Mr.Kushagra Singhraj and Mr. Vishal Gohri, Advocates had appeared for appellant as per the order dated 13th November, 2019. Moreover, Mr. Vishal Gohri had filed his vakalatnama on behalf of the defendant Nos. 2 and 3.

14.
Further, despite being aware of the institution of the Suits against him and also having become aware of the Judgment and Decree dated 15th November, 2019 on the same day itself, no action was taken by the appellant till filing of the applications under Order IX Rule 13 CPC and for condonation of delay. The Appellant claimed that the application for certified copy of the Judgment/Decree dated 15th November, 2019 was made on 30th November, 2019 and the same was made available in the first week of March, 2020. However, the certified copy of the Judgment/Decree, which was allegedly obtained on the basis of which the limitation has been sought to be excluded, has not been placed on record. The date of receiving the certified copy is vaguely stated to be in first week of March, 2020 without giving the exact date.

15.
The Appellant has sought exclusion of period from 15th March, 2020 till 28th March, 2022 on the ground of COVID-19 Pandemic outbreak. Significantly, the time for filing the Appeal was thirty days from the date of Judgment/Decree i.e., 15th November, 2019 and no explanation has been given explaining the delay till outbreak of COVID-19 Pandemic. Consequently, the Appellant is not entitled to the extended period of limitation on account of COVID-19 Pandemic.

16.
This Court also finds that the respondent has placed on record a confession letter duly signed by the Appellant in the meeting held on 5th May, 2017 between the parties, which was witnessed by Defendant No. 2 (wife of the Appellant) and Defendant no. 3 (father of the Appellant), wherein the Appellant admitted to having committed financial illegalities of around Rs.3 crores in the letter signed by Defendant No. 1 wherein a request was made by the Appellant to the Respondent for adjustment of his salary and gratuity of April 2017 towards the embezzled amounts. The Appellant had also enclosed eight post-dated cheques for a total of Rs.2.70 lakhs towards repayment of embezzled amounts, and a resignation letter dated 5th May 2017.

17.
Keeping in view the aforesaid, this Court is of the view that the present appeal is bereft of any merit. Accordingly, the same is dismissed with costs of Rs.25,000/-to be paid to the respondents within four weeks.

ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J JULY 02, 2024 KA