Bajaj Auto Finance Ltd. vs Mitshi Udyog And Ors.
2004 Latest Caselaw 1080 Del

JUDGMENT

Vikramajit Sen, J.

1. This matter has been heard for over one hour. Judgment Debtors No.2 to 7 are stated to be partners of Judgment Debtor No.1. These Judgment Debtors are closely related to Shri Manmohan Seth, Judgment Debtor No.7, who had earlier filed an application under Order IX Rule 13 of the Code of Civil Procedure, along with an application under Section 5 of the Limitation Act, for setting aside the ex parte decree. This application has been rejected by my learned Brother Hon'ble Mr. Justice C.K.Mahajan by the Order dated 20.11.2003 with which I respectfully concur.

2. The Plaintiff has placed on record the Affidavit of compliance under Order XXXIX Rule 3 CPC which states that the Plaint and documents filed along with it had been dispatched to the Judgment Debtors by registered AD post. It is true that although ordered to do so, service of summons in the suit have not been attempted by registered AD post. No registered AD covers had been filed. However, applications were filed from time to time of which notice had issued by ordinary process. All these attempts have proved futile since although the address of the Defendants had been correctly given by the Plaintiff, they could not be served for one reason or the other. A lot of emphasis has been placed on the fact that registered AD covers were not filed but in view of the repeated attempts made to serve the Judgment Debtors, it would not be unreasonable to assume that they would have met with the same fate. Where procedural technicalities are resorted to, such persons should also be accorded similar treatment. On 15th May, 2000 a Receiver had been appointed who has visited the site in question and also affixed notices thereon, in proof of which photographs are available on the record. It is wholly incredible that even on this date none of the Defendants/Judgment Debtors had become aware of the pendency of the suit. It has not been contended before me, nor has it been pleaded in any application, that the papers sent by registered AD post by way of compliance under Order XXXIX Rule 3 had not reached any of the Judgment Debtors. Therefore the record affirmatively bears out that they had knowledge of the pendency of these legal proceedings and this is relevant so far as the present application under Order IX Rule 13 (without any reference to Section 5 of the Limitation Act) is concerned.

3. Notice on the application had been issued on 16.12.1998.

4. It has been contended that the firm had been dissolved although there is no documentary evidence to substantiate this statement. This is obviously in response to the provisions of Order XXX of the CPC which prescribe that service of any one partner is binding on all other partners. Be that as it may, it cannot be overlooked that the address of the Defendants in the present case is their correct address and that all the Defendants/Judgment Debtors are very closely related to each other. While dealing with an application under Order IX Rule 13 these questions become very relevant. The present application has been filed with uncondonable delay. At the time when the previous application had been filed by Shri Manmohan Seth, Father of the present Applicant, would have had knowledge of the proceedings despite the self serving and unbelievable statement that the family relations have soured. The present application ought to have been filed at least in 1999. Thereafter the Receiver has visited the premises but even at that juncture this application has not been filed. The Report of the Receiver has been signed by Ms. Dimple Seth, Defendant No.3/Judgment Debtor who has stated that she is the tenant of the Applicant Shishir Seth. The Applicant expects this Court to be so gullible as to believe that the Applicant was not informed or apprised of Court proceedings not only by his father but also one of the partners (or erstwhile partners) as well as alleged tenant of the applicant, when the applicant is admittedly a joint owner with Defendant No. 2, Defendant No.6 and Defendant No.7. The application smacks of collusion.

5. My attention has been drawn to the Explanation under Section 123 of the Limitation Act. This was considered in Kanshi Ram Mohan Lal Versus Smt. Bhagwan Kaur and the learned Judge had pointedly stated that this explanation cannot be interpreted in a manner so as to render Order V Rule 20 of the CPC as otiose/redundant. The limitation for filing an application for setting aside an ex parte decree is stipulated as thirty days from the date of the passing of the decree or where the summons or notice have not been duly served from the date when the Applicant had knowledge of the passing of the decree. Assuming that the summons or notice have not been duly served stricto sensu, the Applicant has nevertheless to satisfy the Court that he has approached it within thirty days from the date of knowledge. This is where the Applicant has miserably failed. The Explanation come into focus in these circumstances clarifying that the publication would not be the starting point of the thirty days. In my opinion, the Applicant had knowledge of the pendency of these proceedings when he was served in February 1996; he had knowledge of the passing off a preliminary decree when the Receiver visited the premises on 22nd May, 2000 and he had knowledge when his father/Defendant No.7 filed the previous application under Order IX Rule 13 and Section 5 of the Limitation Act i.e. December 1999. My Learned Brother Mahajan was not satisfied on this very score when the Father's similar application came before him for consideration. Instead, the Applicant has stated that he has gained knowledge of the pendency of these proceedings only on 9.9.2002, when the impending sale of the property was publicly notified in the area by `beat of drums'. Counsel for the Decree Holder states that the Process Server/Bailiff Report pertaining to this date shows that the Applicant was not present whilst his father was. Obviously, there was a communication between the father and the son or the latter's so called tenant. There is nothing on record which would convince me to believe that there was any discord between them at any prior time. In these circumstances, the application itself having been filed beyond thirty days of the date of knowledge cannot be entertained. It is indeed significant that no application under Section 5 has been filed. Irregularity in initial service does not empower a party to file this genre of applications whenever they choose with no reference or correlation to the date of knowledge of the pendency of proceedings.

6. In these circumstances, I find the application is mala fide and has been filed at the eleventh hour since the sale of the property has been scheduled for 25th October, 2004. It is patently time barred.

7. The application is dismissed with costs of Rs.10,000/-.