M/S.Dollarmine Exports Pvt. Ltd. vs M/S. M.B.International Pvt. Ltd.
2008 Latest Caselaw 2103 Del

                                        UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(OS) 318/2006

                                  DATE OF RESERVE: September 18, 2008

                                DATE OF DECISION: November 27, 2008

      M/S. DOLLARMINE EXPORTS PVT.LTD.           ..... Plaintiff
                    Through: Mr.H.S.Phoolka, Sr. Advocate with
                             Mr.Kanwar Faisal and Ms.Vijaishree
                             Dubey, Advocates.

                    versus

      M/S. M.B.INTERNATIONAL PVT. LTD.                 ..... Defendant
                     Through: None.



      CORAM:
      HON'BLE MS. JUSTICE REVA KHETRAPAL

1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?

      JUDGMENT

: REVA KHETRAPAL, J.

1. The present suit has been filed by the plaintiff under Order XXXVII of

the Code of Civil Procedure (hereinafter referred to as the 'Code') for recovery

of a sum of Rs.39,39,000/- (Rupees Thirty Nine Lacs Thirty Nine Thousand

only) on the basis of two cheques drawn on the Corporation Bank, Greater

Kailash, New Delhi, that is, cheque bearing No.924023 dated 01.03.2003 for

Rs.12,75,000/- (Rupees Twelve Lacs Seventy Five Thousand only) and cheque

bearing No.924024 dated 01.03.2003 for Rs.13,25,000/- (Rupees Thirteen Lacs

Twenty Five Thousand only), which were dishonoured on presentation.

2. Summons of the suit issued to the defendant were duly served on the

defendant, but the defendant failed to enter appearance in the suit, though

memo of appearance was filed on behalf of the defendant. Thereafter, the

plaintiff filed an application seeking to serve Summons for judgment upon the

defendant in Form 4A in Appendix-B. On 30th November, 2007, this Court

ordered the Summons for judgment to be delivered upon the defendant at the

address given in the memo of appearance filed on behalf of the defendant.

3. The summons for judgment were sought to be served on the defendant

by ordinary process as well as by Registered Acknowledgment Due Post. The

report of the process server was received in respect of the summons issued

through ordinary process that the summons had been refused by the defendant

on one pretext or the other, despite repeated visits made by the process server,

i.e., on 20.05.2008, 14.07.2008 and 22.08.2008. The summons for judgment

sent to the defendant by registered A/D post were also received back with the

report of "Refusal", duly stamped by the postal authorities.

4. In the aforesaid circumstances, Mr.H.S.Phoolka, the learned senior

counsel for the plaintiff submits that the plaintiff is entitled to the decree

prayed for in the suit under Order XXXVII CPC filed by him.

5. It is well settled that Order XXXVII CPC is a self-contained Code in

itself. Sub-Rule (2) of Rule 3 clearly postulates that summons, notices and

other judicial processes, required to be served on the defendant, shall be

deemed to have been duly served on him, if they are left at the address given

by him for such service. In the instant case, summons for judgment were

sought to be served on the defendant, but the registered envelope containing

the Summons for judgment was received back with the report of refusal. The

report of the postal authorities and the report of the process server of this Court

bear testimony to the fact that the defendant deemed it expedient not to accept

the summons for judgment delivered to him at his address. The inevitable

corollary, by virtue of the provisions of Sub-Rule (2) of Rule 3 CPC, is that

the said Summons for judgment must be deemed to have been duly served on

him at the address given by him for such service.

6. Sub-Rule (5) of Rule 3 of Order XXXVII CPC provides that the

defendant may at any time within 10 days from the date of service of summons

for judgment, apply for leave to defend the suit.

7. Sub-Rule (6A) to Rule 3 mandates that at the hearing of such Summons

for judgment, if the defendant has not applied for leave to defend the suit or if

such application has been made and refused, the plaintiff shall be entitled to a

judgment forthwith. It is not in dispute that no application for leave to defend

has been filed by the defendant.

8. It must be borne in mind that in a suit under Order XXXVII CPC, the

defendant is served twice over, first with Summons of the suit in the prescribed

form and thereafter, with the Summons for judgment. In the instant case, on

the first occasion, the Summons of the suit were duly served upon the

defendant. On the second occasion, the defendant, knowing fully well the

implication of accepting the summons for judgment, refused to accept the

same. As per Sub-Rule (2) of Rule 2 of Order XXXVII CPC, if summons,

notices or any judicial processes are left at the address, there is presumption of

service. In the instant case, such presumption becomes stronger in view of the

fact that the summons have been brought to the notice of the defendant and the

defendant has refused acceptance of the same. The process of service is

complete and the defendant having chosen not to file any application for leave

to defend the suit, the plaintiff is held to be entitled to the decree prayed for by

it in the suit in accordance with the provisions of Sub Rule (6A) of Rule 3 of

Order XXXVII CPC.

9. Consequently, the suit is hereby decreed in favour of the plaintiff and

against the defendant in terms of the prayer made by the plaintiff in the suit.

The Registry shall draw up a decree sheet accordingly.

CS(OS) 318/2006 stands disposed of in the above terms.

REVA KHETRAPAL, J November 27, 2008 dc