$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2275/2011
Decided on :23.04.2014
J & G ELECTRONICS (P) LTD ..... Plaintiff
Through Ms.Misha Rohtagi, Adv.
versus
JAKSON ENGINEERS LTD ..... Defendant
Through Mr. Siddharth S. Dev, Adv. with
Mr.Rohit Jain, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
IA No. 6130/2013 ( Order 9 Rule 7 CPC)
1. This is an order for dismissal of the application filed by the defendant under Order 9 Rule 7 of the CPC for setting aside the ex-parte proceedings.
2. Briefly stated the facts of the case are that the plaintiff filed the present suit for the recovery of Rs. 29,58,186/- against the defendant company. Summons were ordered to be issued to the defendant on 28.11.2011 and the matter was adjourned to 23.02.2012. On 23.02.2012 the defendant was proceeded ex-parte on the basis of the service report of refusal received on the summons. The plaintiff was permitted to file ex CS(OS) No. 2275/2011 Page 1 of 7 parte evidence by way of affidavit.
3. The defendant has filed the present application for setting aside ex parte proceedings on the plea that they were not served in accordance with Order 29 Rule 2 Sub-clause (b) of the Code of Civil Procedure. The reference was also made to Order 5 Rule 17 of the CPC to the effect that in case the defendant or his agent or other person refuses to sign any acknowledgment, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house where the defendant is residing or carrying on business. It has been stated in the application that the defendant is having various matters in different courts and on 07.12.2012, a Criminal Revision No. 72/2012 titled M/s Ganges Enterprise Private Limited against the defendant was decided in favour of the defendant/applicant. On 09.02.2013 their counsel Mr. Siddharth Shankar Dev in order to check as to whether any appeal has been filed against the order dated 07.12.2012 was browsing the official website of the Court when he learnt for the first time that the present civil suit bearing CS(OS) No. 2275/2011 titled J&G Electronics (P) Ltd. Vs. Jakson Engineers Ltd. was filed against them and the same was coming up for hearing on 11.02.2012. It was also learnt by them that they were proceeded ex parte on 23.02.2012. Their counsel immediately contacted the General CS(OS) No. 2275/2011 Page 2 of 7 Manager (Legal) of the defendant company who informed him that no notice pertaining to the case had been received by the company. Ultimately, this resulted in filing of the present application on 09.04.2013. The plaintiff has filed reply to the application and denied the averments made in the application. It has been stated that the service report says that an employee of the defendant company had refused to accept the service after having spoken to his superior officer and this is borne from the report of the process server. It is also stated that a false plea has been set up by the defendant company for setting aside ex parte proceedings which was deliberately initiated to gain time. It is stated that this belated application has been filed only to delay the disposal of the suit.
4. I have considered the submissions made by the learned counsel for the parties.
5. The learned counsel for the defendant has placed reliance on the judgment titled Shalimar Rope Works Ltd. Vs. Abdul Hussain H.M. Hasanbhai Rassiwala & Ors., AIR 1980 SC 1163 to contend that the service on the defendant has to be effected in terms of Order 29 Rule 2(b) of the CPC being a company.
6. I have gone through the said judgment. No doubt the service has to be effected on a company in terms of Order 29 Rule 2 Sub-clause (b) of the CS(OS) No. 2275/2011 Page 3 of 7 CPC but the ratio of the said judgment is not applicable to the facts of the present case inasmuch as in the said case, the plea, which was taken by the company was that they were not duly served and they learnt about passing of the ex parte decree for the first time only when the attorney of the company received notice from the respondent by registered post demanding decretal amount.
7. The purpose of sending summons to the defendant, whether it is an individual or a company is essentially to inform them about the initiation of the legal proceedings against it. In the instant case, the summons were taken to the defendant at its address situated at DLF Centre, 6th Floor, Jasola, New Delhi, where one of the employees of the defendant disclosed his name Rohit, who was given copy of the summons. He had read the summons and spoken to his superior officer about the summons and thereafter perhaps on obtaining instructions from his superior officer he had refused to accept the summons. This is borne from the report of the process server. A process server is an employee and a public servant and a presumption of correctness has to be attached to his report. It is not a case of the defendant that the address which was given in the summons was not the address of its office and that its employees were not available there. The case which has been set up by the defendant is that a person who was said to be given the summons CS(OS) No. 2275/2011 Page 4 of 7 was a computer data operator and therefore was not authorized to receive the summons.
8. This plea is totally irrelevant. The purpose of serving the summons, is essentially to make the defendant known about initiation of the judicial proceedings against it. In the instant case, the process server in his report has observed that after receiving the summons the said employee had spoken to some superior officer and thereafter refused to accept the summons. This in my clear view tantamount to service on account of refusal of the summons by the employee of the defendant company. The plea of the learned counsel for the defendant that this cannot be treated as a service is in my considered opinion not tenable and the plea that the service has to be effected on a company only in accordance with Order 29 Rule 2 Sub-clause
(b) is a hyper technical ground which the defendant is taking. The facts of the above cited case as relied upon by the defendant is a case where such a sequence as is available in the instant case was absent and therefore the observations made by the Apex Court in the said case cannot be made applicable in the instant case as the only mode of service in the event of service being effected under Order 29 Rule 2 Sub-clause (b) of the CPC.
9. The falsity of the plea of the defendant that they learnt about the pendency of the proceedings only through their counsel Mr. Siddharth CS(OS) No. 2275/2011 Page 5 of 7 Shankar Dev who was browsing the website of the High Court in order to check as to whether any appeal against the order dated 07.12.2012 was passed in a criminal matter which was decided in their favour also falls flat on account of the fact that no affidavit of this counsel has been annexed along with the present application in this regard. The minimum which was expected from the defendant in case such a plea was being taken and if it would have been the truth, then the affidavit of the counsel would have been annexed along with the application itself. Therefore this plea of learning about the factum of pendency of the suit only on browsing the website through counsel only seems to be a false plea to put the clock back.
10. Lastly, the casual approach of the defendant in getting the matter decided or rather indulging in dilatory tactics is also reflected by the fact that the defendant did not appear in the matter after service of the summons also. Article 123 of the Limitation Act states that an application for setting aside ex parte proceedings should be filed within thirty days from the date of the acknowledgment. Admittedly, according to the defendant's own plea that they got to know about the pendency of the suit on 09.02.2013 but the application is filed only on 09.04.2013 i.e. after expiry of more than thirty days and that too without any accompanying application seeking condonation of delay. This clearly shows that the entire exercise which has CS(OS) No. 2275/2011 Page 6 of 7 been initiated by the defendant is to put the clock back. As a matter of fact, a suggestion was put to the defendant's counsel since they want to put the clock back they must obtain the instructions from the defendant as to whether they would like to deposit some amount with the court in order to show their bona fides to which the counsel has obtained instructions flatly refusing to the suggestion.
11. All these facts clearly shows that the entire purpose of initiating the exercise of setting aside the ex parte proceedings is to relegate the plaintiff to the threshold itself in the suit for recovery which was initiated in the year 2011 and to start from scratch after setting aside the ex parte proceedings. This cannot be permitted to be done at the behest of a litigant who is not truthful and fair to the court.
12. In view of the abovesaid reasons, I dismiss the application of the defendant under Order 9 Rule 7 of the CPC.
V.K. SHALI, J APRIL 23, 2014 mg CS(OS) No. 2275/2011 Page 7 of 7