Bombay High Court
Ganpatraj K. Sanghvi vs Vishal Udyog And 2 Ors on 23 June, 2016
Bench: K.R. Sriram
1 NMS1683.15-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1683 OF 2015
IN
SUMMARY SUIT NO.454 OF 2012
Ganpatraj K.Sanghvi ....Plaintiff
V/s.
Vishal Udyog & Ors. ....Defendants/applicants
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Mr.Nitin Thakkar a/w Mr.A.S.Pal i/by Prasad L.Gajbhiye for plaintiff.
Mr.Shyam Kapadia a/w Mr.Prashant Kamble i/by Kartikeya and
Associates for defendants/applicants.
----
CORAM : K.R.SHRIRAM,J
DATE : 23.6.2016
P.C.:-
1 This Notice of Motion is to set aside an ex-parte decree
that was passed on 1.4.2013. Order 37 Rule 4 of the Code of Civil
Procedure 1908 reads as under :-
"4. Power to set aside decree - After decree the Court
may, under special circumstances, set aside the
decree, and if necessary stay or set aside execution,
and may give leave to the defendant to appear to the
summons and to defend the suit, if it seems
reasonable to the Court so to do, and on such terms
as the Court thinks fit."
2 Therefore, we have to see whether the applicant has set
out "special circumstances" to set aside the ex-parte decree.
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3 The case of the applicant is that the writ of summons was
not served upon him at all. In the cause title in the plaint the address
of the defendants is shown as under :-
"B/4, Shri Krishna Vihar, Babulal Pannalal Jain Marg,
Road No.22, Belapur Village, Jain Society, Navi
Mumbai-400 706"
In the presentation form filed with the plaint also the
address of the defendants is shown as "B/4 Shri Krishna Vihar,
Babulal Pannalal Jain Marg, Road No.22, Belapur Village, Jain
Society, Navi Mumbai-400 706".
5 When the plaintiff served the writ of summons, the packet
was returned by the postal authorities with the endorsement
"intimation and unclaimed" . The plaintiff therefore, filed an affidavit of
service of the Bailiff of the Sheriff of Bombay, based on which the
Addl. Prothonotary & Senior Master passed an order granting leave to
serve the defendants by substitute service. Based on that, the plaintiff
published the writ of summons in Free Press Journal and Navshakti
on 28.2.2013. The plaintiff also filed an affidavit of service of the clerk
of the plaintiff's Advocate. Suit was listed on 1.4.2013 and this Court
was pleased to pass an ex-parte decree in favour of the plaintiff on
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the ground that the defendants have not entered appearance.
Paragraph nos.2 & 3 of the said judgment read as under :-
"2. The plaintiff has filed affidavit proving service of the
writ of summons dated 30th day of March 2013.
However, the Defendants have not appeared before
the Court.
3. The plaintiff has filed the suit as a Summary Suit
under the provisions of Order XXXVII Rule 2 of the
Code of Civil Procedure 1908 against the Defendants,
since the Defendants have failed/neglected to make
payment to the plaintiff of the claim amount payable for
goods sold and supplied to the Defendants. All the
purchase orders, invoice, delivery challans constituting
a written contract between the plaintiff and the
Defendants are placed on record. In view of sub-Rule
(3) of Rule 2 of Order XXXVII of the Code of civil
Procedure, 1908, the plaintiff is forthwith entitled to a
decree against the Defendants."
6 I do not find in the record & proceeding any affidavit of
service dated 30.3.2013. Mr.Thakkar appearing for the plaintiff
submitted that it could be a typographical error and it should be
4.3.2013. If that was so, it was for the plaintiff to move the Court for
speaking to the minutes to have the date corrected. Not only that
even in the affidavit in reply to the present Notice of Motion the
plaintiff has relied upon affidavit of service dated 30.3.2013. I asked
the counsel for the plaintiff to provide copy of the said affidavit, which
he could not, particularly in view of the fact that the counsel for the
applicant stated that despite repeatedly calling upon the plaintiff they
have not given inspection of the affidavit of service dated 30.3.2013.
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4 NMS1683.15-19
7 It is the case of the applicant that the residence of the
defendant no.3 (defendant no.2 having expired sometime back) is B-
3, Krishna Vihar, Babulal Pannalal Jain Marg, Road No.22, Belapur
Village, Jain Society, Navi Mumbai-400 706 and not B-4 Shri Krishna
Vihar. I asked the counsel for the plaintiff from where did the plaintiff
get the address B/4, Shri Krishna Vihar. The counsel stated that the
whole building is owned by the defendants and relied upon the
documents annexed to the additional affidavit filed by the plaintiff
affirmed on 9.12.2015.
ig None of the documents indicate that the
defendants owned the entire building. There is a copy of the sale
agreement which shows that unit 1B had been purchased by the
defendants. The building shown in the agreement is Krishna Vihar III.
It is the case of the applicant that he resides in building III B and not
B/4. It is not the case of the plaintiff that the defendant was avoiding
service. The counsel for the plaintiff submitted that the defendant has
been changing address very frequently which also I noticed. But
would that permit the plaintiff to serve writ of summons at an address
where the defendant never was ? Indisputably the defendant was
never at the address shown in the cause title of the plaint.
Moreover, the packet that was dispatched by the plaintiff of
the Sheriff of Bombay has been returned with the endorsement
"intimation and unclaimed" If intimation is posted at the wrong
address, can the defendant be stated to be avoiding service ? I
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would go a step further that even if the intimation was posted at the
right address and the defendant has not claimed the packet from the
postal authorities, would it still be a reason to believe that the
defendant is keeping out of the way for the purpose of avoiding
service or for any other reason summons cannot be served, for the
Prothonotary and Senior Master to permit to serve the writ of
summons by substituted service. In my view, by dropping the
intimation once we cannot conclude that the defendant is keeping out
of way for the purpose of avoiding service or writ of summons cannot
be served. The plaintiff should make further attempts before the
Prothonotary & Senior Master permits him to serve writ of summons
by substituted service particularly when it is a Summary suit and
within 10 days defendants have to enter appearance. I have been
observing that the Prothonotary & Senior Master and
Addl.Prothonotary & Senior master has been granting leave to serve
by substituted service as a matter of course. They must while
granting such a leave, record reason why they feel the defendant was
keeping out of the way for avoiding service or why the summons
cannot be served in the normal way. There could be various reasons
why when intimation is posted, a party may not have collected the
packet from postal authorities or the courier for e.g. the party may not
be residing at the address where the intimation was dropped like in
this case ; (b) The party may be out of town and before they returned,
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the time provided to claim would have lapsed ; (c) the party may be
too old or unwell to receive the parcel or go and claim. There could
be many reasons. Plaintiff cannot just make one attempt and come
and ask for leave to serve by substituted service. The onus is on the
plaintiff to prove that the defendant was keeping out of the way for the
purpose of avoiding service. Leave to serve by substituted service
cannot be granted as a matter of course and the Prothonotary &
Senior Master should satisfy himself and give reasons why he is
permitting service by substituted service.
8 In 1Rajnikumar Vs. Suresh Kumar Malhotra, paragraph-8
reads as under :-
"The expression `special circumstances' is not defined
in the C.P.C nor is it capable of any precise definition
by the Court because problems of human beings are
so varied and complex. In its ordinary diction any
meaning it connotes something exceptional in
character, extraordinary, significant, uncommon. It is
an antonym of common, ordinary and general. It is
neither practicable nor advisable to enumerate such
circumstances. Non-service of summons will
undoubtedly be a special circumstance. In an
application under Order 37, Rule 4, the Court has to
determine the question, on the facts of each case, as
to whether circumstances pleaded are so unusual or
extraordinary as to justify putting the clock back by
setting aside the decree ; to grant further relief in
regard to post-decree matters, namely, staying or
setting aside the execution and also in regard to pre-
decree matters viz. to give leave to the defendant to
appear to the summons and to defend the suit."
1 AIR 2003 SUPREME COURT 1322
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9 The Apex court has held that non-service of summons will
undoubtedly be a special circumstance. I am satisfied that the
summons has not been served upon the defendants and therefore, it
will be a special circumstance under Order 37 Rule 4 to recall the ex-
parte decree passed. Substituted service may be good service in law
but the fact that leave to serve by substituted service was granted
without valid reason will go to the root of the matter. In my view leave
was granted without valid reasons. Substituted service can be
permitted only when there are reasons to believe that the defendant
is keeping out of the way to avoid service or if summons cannot be
served. There was nothing in the present case to believe the
defendants were keeping out of the way to avoid service.
10 Shri Thakkar submitted that the defendant also has to
show by affidavit, facts which would entitle him for leave to defend the
suit. He submitted here is a defendant who has been shifting place of
business from time to time only to cheat various creditors like the
plaintiff. In the affidavit in support of the Notice of Motion it is stated
that the defendants have also informed the plaintiff about defects in
material before the suit was filed. It is also stated that the defendant
had filed a FIR before the suit was lodged and the whole plaint is a
counter blast. Therefore, the defendant has shown some material for
the Court to consider at the hearing of the summons for Judgment as
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to whether the defendant should be granted leave to defend the suit
or not. It is not that the defendant has been totally silent.
11 I must also clarify that I have not made any observations
on merits of the counter allegations made and that would be
considered at the time of hearing of summons for judgment.
12 In the circumstances, the ex-parte decree passed on
1.4.2013 is recalled.
13 In view of the above, the question of executing ex-parte
decree will not arise and therefore, Thane court is directed to return
the process.
14 The counsel for the applicant states that his Advocate's
Vakalatnama be continued in the main suit.
15 Since the defendant no.2, I am told has expired, the
advocates for the applicant to provide details of the legal heirs of
defendant no.2 to the plaintiff's Advocate within one week from today
along with a copy of the death certificate. The plaintiff to amend the
cause title within one week thereafter and serve a copy of the
amended plaint upon the Advocate for the defendants.
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16 At the request of the counsel for the plaintiff this order
setting aside the ex-parte decree is stayed for a period of four weeks.
(K.R.SHRIRAM,J)
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