Oriental Bank Of Commerce vs Saiek Chand Balak Ram And Ors.
1993 Latest Caselaw 157 Del

JUDGMENT

S.C. Jain, J.

(1) M/S Oriental Bank of Commerce, the plaintiff bank (hereinafter called plaintiff) filed a suit for the recovery of Rs. 1,28,603.35 under Order 37 of the Code of Civil Procedure in the year 1984 being Suit No. 1047 of 1984. Summons in the form prescribed which were issued to the defendants could not be served in the ordinary way and they were served by means of publication in Delhi 'STATESMAN' on 18.2.1986. There are four defendants. Defendant No.1 is a partnership firm of which Defendant Nos. 2 and 3 are the partners. Defendant No.4 is the guarantor. During the pendency of the suit Defendant No.3 died and his legal representatives were brought on record. Defendants did not enter their appearance and, therefore, vide Order of this Court dated 20.3.1986 a decree for Rs.l,28,603.35 with interest at the rate of 19% per annum from the date of institution of the suit till payment was passed. Liability of the legal representatives of deceased defendant No.3 was limited to the extent of estate of defendant No.3 inherited by them.

(2) After about 2 years, two applications being 1. A. Nos. 2554 and 2555 of 1988 have been filed for setting aside the ex-parte decree. The main point raised in these applications is that they were never served with the summons in the said suit as provided under Order 37 CPC. They learnt for the first time about the decree on 22nd March,1988 when informed by bank officials and immediately thereafter, they filed these applications for setting aside the ex-parte decree. Record shows that the suit is based on the basis of negotiable instruments and is maintainable under Order 37 CPC. It is also on record that summons in the form prescribed which were issued to the defendants could not be served in the ordinary way and they were served by means of publication in 'STATESMAN' Delhi on 18.2.1986. The only point which requires determination in this case is whether the substituted service in the newspaper of the summons in the form prescribed under Order 37 Civil Procedure Code is a valid service or not. This point cropped up in a Division Bench decision of this Court in F.A.O.(OS) NO. 50 of 1984 wherein the learned Judges vide their Order dated 9th August,1984 held that in a suit under Order 37 Civil Procedure Code the service by way of publication in the newspaper is a valid service. In this case, it is on record that summons in the form prescribed under Order 37 Cpc were served by means of publication in 'STATESMAN' Delhi on 18.2.1986 and the defendants did not enter appearance nor file any application seeking leave to defend. It is only after 2 years that these two applications have been filed for setting aside the ex-parte decree.

(3) In view of the circumstances explained and the facts available on record, I do not find that there are sufficient grounds for setting aside the ex-parte decree. The applications are hopelessly barred by time. The defendants were duly served with the summons in the form prescribed under Order 37 Civil Procedure Code by means of publication in the newspaper on 18.2.1986 and they did not choose to make an appearance nor did they file any application seeking leave to defend. I find no merit in both these applications, and the same are hereby dismissed with costs, which I assess at Rs. 2,000.00.