Pujab National Bank vs R.K.K.R. International Pvt. Ltd. ...
1990 Latest Caselaw 362 Del

JUDGMENT

R.L. Gupta, J.

(1) This application has been moved on behalf of defendant No. 1 in the original suit under order 9, Rule 13 read with Section 151 of the Code of Civil Procedure (Code for short) for setting aside an ex parte decree against it passed on 6th October. 1988. "It is alleged that the defendant/ applicant had not been served with any summons and as such be bad no knowledge of the pendency of the suit before this Court. He bad filed a civil suit bearing No. 1966/85 in this Court which is still pending. On 5th December. 1988. an official of the plaintiff bank informed the Director of the applicant company that a decree had been passed against the applicant and in favor of the bank. This information shocked the Director of the applicant company and accordingly Mr. R.L. Kohli, Advocate, was contacted to enquire as to how a decree had been passed against, the applicant on his back and without any notice Enquiries and inspection of the cause list revealed the factum of the passing of the decree without any service on the applicant, It is then alleged that on 5th May, 1988 on Mr.I.C.Sudhir, Advocate, appeared before this Court stating that he was a counsel for the defendant applicant. But the fact remained that the defendant/applicant had not been served in the suit and had not engaged any counsel and therefore, there is no question of anybody appearing for the applicant. Further enquiries revealed that the applicant bad filed a case against M/s Bagri Steel Pvt. Ltd. which was fixed before this Court on 5th May, 1988. In that case they had instructed Mr. R.L. Kohli, Advocate, the appear. The appearance by. Mr. I.C. Sudhir, Advocate was mistaken to be an appearance in this case. Therefore, there being bonafide mistake on the part of Mr. I.C. Sudhir, Advocate, the applicant/defendant was prevented from appearing in this case and contest it. There was no service on the defendant/applicant and as such the ex parte decree should be set aside and the applicant be allowed to contest this case on merits.

(2) The application was contested on behalf of the degree-holder. Preliminary objections are also taken to the effect that the application is barred by time and that it was an abuse.of the process of law. In fact the applicant/defendant was served for 27th August, 1987 and the counsel Mr. I.C. Sudhir also filed an application for inspection of the Court filed on 8th September, 1987: Therefore, the whole story of the mistake on the part of Mr. I.C. Sudhir was a mere concoction. Therefore, a false affidavit has been filed Along with this application and the 'application should be dismissed on that short ground.

(3) On merits, it is alleged that the applicant was fully aware of the pendency of,tbe case against him as to counsel for the plaintiff after obtaining the ad-interim ex parte injunction, sent to the applicant copy of the plaint and copy of the application under Order 39 Rules 1 & 2 Along with the affidavit through regd. A/D, in compliance with the provisions of Order 39 Rule 3. A photo copy of the A/D card recall by the counsel for the applicant is also annexed as Annexure 'A'. Apart from that, there is a report of the process server that the applicant refused, to accept service of tbe summons and, therefore, the process service affixed the same. It was denied that any bank officials informed of the passing of the passing of the degree and it was only a concocted story. In fact Mr. I C. Sudhir, Advocate appeared in Court on behalf of the applicant and sought time to file written statement on behalf of the applicant. It was incorrect that the applicant had not been served and that he had not engaged any counsel. Regarding the other suit referred by the applicant, it was stated that the plaintiff bank was not a part in that suit and/tendency of that suit against M/s Bagri Steel Pvt. Ltd. has Bo relevance to this case.

(4) I have heard arguments advanced by learned counsel for the parties. and have given a careful consideration to all the aspects of the matter.

(5) There is an endorsement by the Court Master in the file above order-sheet dated 27th August, 1987 in pencil that defendant No 1 was not served. It was probably on that' basis that this Court recorded that defendant No. I had not been served. However, the fact of the matter is that there arc reports of the Process Server on the back of the summons issued against tbe applicant/defendant No. 1 for hearing on 27th August. 1987. According .to the first report when the process server visited the premises of the defendant applicant alleged to be situated in Parliament Street, New, Delhi, on 22nd May,1987, became to know that the office of the applicant had been shifted to 3. Bhikaji Cama Place, Chamber No. 1, New Delhi. He then visited the office of the applicant at that address on 10th June, 1987 for effecting service of the summons on the applicant company. One Mr.Hari Haran met him there who told the process server that the office of the applicant was at 5, Parliament Street, New Delhi. The process server again visited the office of tbe applicant on 16th June, 1987 where he tried to effect service on the . Manager of the applicant company. The Manager read the summons for a pretty long lime and then told the process server that he could not accept. that commons and ultimately refused to accept service. Therefore, he affixed a copy of the summons at the office of the applicant. Then an application for inspection of the judicial file move on .behalf of the applicant by Mr. I.C. Sudhir, Advocate on 8th September, 1987 is also there on record. The inspection was allowed and actually be must have carried out the inspection. It is not denied that Mr. I.C. Sudhir. Advocate, at tha't 'time was a junior counsel attached with Mr.R.LKohli, Advocate, who moved this application for setting aside ex parte decree on behalf of the 'applicant. It may further be noted that after that file was again inspected by the same Advocate i.e. Mr. I C. Sudhir on 26th April, 198? and an application to that effect is also on record Mr. Sudhir also put in appearance on behalf of 'counsel for d fendant No. 1 in Court On 5th May, 1988 and sought time to file the written statement. It is very significant to note that Mr. Sudhir appeared for counsel for defendant No. 1 (applicant) It is admitted that at that time Mr. Sudhir was working as a junior of Mr. Kohli. It is Mr. Kohli who has now moved this application for setting aside the ex parte decree. Therefore, it must be presumed now that Mr. Sudhir actually appeared in the Court under instructions of Mr. Kohli who is now trying to take advantage of a technical defect that there was actually no service I am of the view that it is not at all necessary under law to insist that a party must be served even though he has already put in appearance through an Advocate and specially when that Advocate is a junior to the same counsel who moved the application for setting aside the decree. It is nothing short of practicing fraud upon the Court and also amounts to abuse of the process of the Court. It is further significant to note that it is not stated in the application that Mr. Sudhir was not instructed by Mr. Kohli to appear on his behalf. If Mr.Sudhir had appeared without instructions, it was the duty of the applicant to so allege in the application. It also looks little odd that in this application Mr. I.C. Sudhir Advocate is described as "one Mr. I.C. Sudhir, Advocate appearing for counsel for the applicant/defendant when actually. Mr. Sudhir was a junior of Mr. Kohli. ; Such an expression, I am of-the view, is used for those who are strangers and not known to a party.

(6) It may also be noted that in the reply the Bank alleged that after issuance of an ex parte injunction they sent copies of the application, plaint etc. to the defendant/applicant under Order 39, Rule 3 of the Code.The fact that any bank official informed the applicant about the passing of the decree was also denied. No rejoinder was filed on behalf of the defendant/ applicant inspite of opportunity: being granted. Rather a statement was made by Mr. Kohli on 12th May 1989 that he would not like to file any rejoinder Therefore, it can be said with reasonable certainly that the receipt of documents etc. sent by the plaintiff/DH under Order 39, Rule 3 stands basically admitted. That in fact provides an additional reason to come to the conclusion that the applicant had full knowledge of the pendency of the proceedings and that is why he must have contacted .Mr. Kohli, who in turn asked his junior Mr. Sudhir to appear in Court. -Otherwise there was no earthly reason for Mr. Sudhir to appear in Court. The further explanation that Mr. Sudhir had come to this Court on 5th May, 1988 to actually appear in the case filed by the applicant against M/s Bagri Steel Pvt. Ltd. and that his presence was wrongly recorded in this case, is also without merit. The reason is that the plaintiff bank is not at all a party in that suit and, therefore, question of such an inadvertent mistake having arisen, does not arise.

(7) Therefore, taking all the circumstances into consideration, I am of the view that the defendant/applicant did refuse to accept service as reported by the process server and also received papers under Order 39, Rule 3 and that is why be asked Mr. Kohli, who in the turn asked Mr. I.C.Sudhir, Advocate, to inspect the record on his behalf. It is also proved on record that Mr. Sudhir put in appearance on behalf of Mr. Kohli only because Mr. Sudhir was the junior counsel attached with Mr. Kohli at that time. I, therefore, cannot be said that the applicant was not aware, of the pendency of the suit against him and in fact the applicant even pot in appearance in the Court through counsel, but now trying to sail the technical plea that service has not been personally effected to the applicant.

(8) The second proviso to Rules 13 of Order 9 of the Code says that no Court shall set .Aside a decree passed ex parte merely on the grounds that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing. The significant amendment in the Code was made only in 1976 by the legislature and to my mind, the legislature in its wisdom sought to cover cases as the one in band, besides otbers,so that there is an awareness in general that the ultimate product of justice does not remain lost in the cobweb of technicalities.

(9) I, therefore, do not find any sufficient ground to set aside the ex parte decree against the defendant/applicant and the application filed by him for this purpose is hereby dismissed with costs. Counsel fee is assessed at Rs. 1,000.00