The Delhi High Court recently comprising of a bench of Justice Manoj Kumar Ohri observed that Creditor must seek out the debtor, thus where prima facie case of non-service of summons is established, ex-parte order should be set aside. (GIRISH MITTAL v. PRATEEK MADHAN AND ORS.)
Facts of the case
The present application has been filed under Order IX Rule 7 read with Order XXXVII Rule 2(3) read with Rule 3(7) and Section 151 CPC seeking recall of the order (hereinafter referred to as the ‘impugned order’) whereby the defendants proceeded ex-parte. In the present case, the defendants have sought recall of the impugned order primarily on the ground that the defendants were never served with the summons in the suit for the reason that at the relevant time, the defendants were not staying at the address mentioned in the memo of parties.
Contention of the parties
Learned counsel for the defendants submitted that the present application was filed within limitation. It was claimed that although the defendants are the owners of the property, since 2018, the defendants were residing at ‘Chhatarpur Property’. In support of the above claim, the defendants placed on record two lease deeds executed between the defendant and ‘Mohinder Singh & Company’ with respect to the Chhatarpur Property; Special Power of Attorney executed by the defendant in favor of his father; and the medical records of the defendant. It was further stated that the defendants continued to reside at the Chhatarpur property even though after 2020, no fresh lease deed was executed on account of the COVID-19 pandemic.
Additionally, it has been submitted that on a complaint being filed by the plaintiff against the defendants before the Economic Offence Wing, Delhi Police, New Delhi (EOW), the defendants joined the inquiry and submitted their reply wherein the address of the Chhatarpur property was mentioned.
Learned counsel for the defendants submitted that while passing the impugned order, the Court relied on the affidavit of service filed by the plaintiff wherein service was shown to be effected through e-mail, courier, speed post and dasti. It is submitted that vide an order despite service being shown to be effected through e-mail, the Court directed issuance of fresh summons through all modes including dasti and speed post. While the speed post tracking report showed that the doors were locked, the courier tracking report mentioned that the courier was returned back to the party i.e., the plaintiff.
Courts Observations & Judgment
The bench at the very outset observed that Rule 3(7) of Order XXXVII CPC provides that for ‘sufficient cause’ shown by the defendant, the Court has the discretion to condone the delay in the defendant’s entering an appearance or applying for leave to defend.
The bench referred to the case of Parimal v. Veena reported as (2011) 3 SCC 545, wherein the expression “sufficient cause” was interpreted by Supreme Court as under: “13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.
The bench taking note of the facts of the case referred to Kulvinder Singh's case, wherein it was noted, "the oldest principle of civil law is that the creditor must seek out the debtor and therefore, it was imperative for the plaintiff to give the correct address of the defendants. The present suit being a summary suit, should not be thrown out where the defendants have been able to prima facie show that they were not served with the summons in the suit."
Consequently, for the reasons noted above, the present application was allowed and the order whereby the defendants were presumed to be served by dasti service, was recalled.
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