Om Prakash vs M/S. Chaman Industries & Others
2009 Latest Caselaw 452 Del

                                         REPORTED
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                    I.A.No.2580/2005
                           in
+                   CS(OS) 2168/1997
                          and
                    Ex.P.No.274/2003

       SH.OM PRAKASH                                                 ..... Plaintiff
                                Through: Mr.Sanjay Jain, Sr. Advocate with
                                         Mr.Munish Gupta, Ms.Nitika Mangla
                                         and Mr.Sarfaraz Ahmed, Advocates.
                       versus

       M/S. CHAMAN INDUSTRIES & ORS.               ..... Defendants
                     Through: Mr.Suryakant Singla, Advocate for
                              D-1,3 & 4.

                                    RESERVED ON:    December 03, 2008
      %                           DATE OF DECISION: February 09, 2009

       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?

:      REVA KHETRAPAL, J.

This is an application moved by the defendants No.1,3 and 4 under

Order IX Rule 13 CPC for setting aside the ex parte decree dated 05.11.1999.

2. A suit for the recovery of Rs.34,16,552.35 (Rupees Thirty Four Lacs

Sixteen Thousand Five Hundred Fifty Two and Paise Thirty Five only) was

filed by the plaintiff against the defendants 1 to 4. The defendant No.1 is a

partnership firm, of which the defendants No.2 to 4 were partners.

3. Summons of the suit were sought to be served on the defendants. All the

four defendants were reported to be served on 19th March, 1998, though

vakalatnama was filed only on behalf of the defendant No.2. Written

statement was not filed by any of the defendants. On 02.09.1998, the

defendants were proceeded ex parte in default of appearance and the case was

set down for ex parte evidence.

4. A learned Single Judge of this Court (Hon'ble Mr.Justice Mukul

Mudgal) on 5th November, 1999 held the plaintiff entitled to the decree prayed

for by the plaintiff and disposed of the suit directing the preparation of a decree

sheet. An execution petition was thereupon filed by the plaintiff/decree holder

and upon service of the defendants in the said execution petition, the present

application was filed by the defendants/applicants for the setting aside of the

ex parte decree passed against them in the suit.

5. The averment in the present application is that summons were allegedly

received on behalf of the defendants 1,3 & 4 by the defendant No.3 (Sunil

Kumar), but the signatures on the summons are not his and, therefore, the

summons were never received by the defendants 1,3 & 4. There is, however,

no dispute about the fact that the defendant No.2 (Mr.Vijay Kumar) received

the summons in the premises of the firm, the defendant No.1. According to the

defendants No.1,3 & 4, however, the defendant No.2 had retired from the firm

w.e.f. 31.03.1996. It is submitted that the defendants 1,3 & 4 came to know

about the passing of a decree in the suit when it was sought to be executed on

10.03.2005.

6. On 14.09.2005, the following issues were framed for consideration.

(1) Whether the defendant No.2 had retired from the

partnership of the defendant No.1 firm w.e.f. 31.03.1996? If so,

the effect thereof? OPD

(2) Whether the signatures on the summons issued to the

defendants 1,3 & 4 received by the defendant No.3 are not the

signatures of the defendant No.3? OPD

(3) Whether the application discloses sufficient cause for

setting aside the decree? OPD

(4) Relief.

7. After the framing of the aforesaid issues, the defendants/applicants were

directed to file their affidavits by way of examination-in-chief and on

completion of the evidence of the defendants/applicants, the plaintiff was

directed to file his affidavit by way of examination-in-chief. The Joint

Registrar concerned was directed to record the cross-examination of the

parties.

8. The defendants/applicants examined AW-1 Mr.Sunil Kumar (the

defendant No.3), who is alleged to have received the summons on behalf of the

defendants 1,3 & 4 and the said witness was cross-examined at some length by

the learned counsel for the plaintiff. Thereafter, the evidence of the

defendants/applicants 1,3 & 4 was closed. Since the learned counsel for the

plaintiff/decree holder submitted that he did not wish to lead any evidence on

behalf of the plaintiff/decree holder, his evidence was closed in the affirmative.

9. The defendant No.3, Mr.Sunil Kumar, in his affidavit by way of

evidence has stated that he along with the defendants No.2 and 4 was carrying

on the business of rice export under the name and style of Chaman Industries

at 152, Holambi Khurd, Delhi in terms of a deed of partnership dated

01.04.1994. During the course of the said partnership business, on account of

differences which had crept in, it was decided to dissolve and reconstitute the

firm from 31.03.1996. Shri Vijay Kumar (the defendant No.2) accordingly

retired from the partnership firm. The dissolution deed, he stated, was signed

by all the three partners and witnessed by Shri Ram Lal and Shri Shiv Narayan.

Carbon copy of the said dissolution deed was made and signed by the parties

and was also witnessed by the said two witnesses. The original dissolution

deed, he stated, was with Mr.Vijay Kumar (the defendant No.2), while the

signed carbon copy had since been misplaced. He produced on the record a

copy thereof, which was stated to be the true copy of its original (Exhibit

AW-1/1).

10. According to AW-1, Shri Sunil Kumar, after dissolution of the firm

w.e.f. 31.03.1996, Shri Vijay Kumar ceased to be a partner of the firm

Chaman Industries and had no authority to receive any summons or other

communication either on behalf of the firm or on behalf of its partners, viz. the

defendants 3 and 4. He further stated that on 10.03.2005, a notice was received

from this Court at his residence, requiring them to appear on 20.05.2005, and

on going through the said notice and the accompanying application, it

transpired that some suit had been decreed and the petition seeking execution

thereof had been filed. He accordingly contacted his counsel and moved an

application seeking inspection of the execution file as well as the suit file. The

execution file was made available for inspection on 14.03.2005 and the suit file

was made available for inspection on 15.03.2005. He inspected the file along

with his lawyer. The said inspection revealed that an ex parte decree had been

passed against all the defendants.

11. AW-1 Shri Sunil Kumar further stated in his affidavit that he had no

notice or knowledge of the suit prior to 15.03.2005. Summons were never

served upon him or his brother, the defendant No.4 or any other member of

their family. The summons, though served on the retired partner (the defendant

No.2) never informed him or the defendant No.4 about the summons having

been received by him on their behalf.

12. Significantly, AW-1 Sunil Kumar went on to state that:

"I have seen receipted copy of summons in the suit file which is purported to have been received by him. I have also seen the receipted copy of summons addressed to Yash Pal which allegedly bears my signatures. I say that the receipted copy of summons addressed to me or to Yash Pal did not bear my signatures. I say that the summons addressed to me or Yash Pal were neither tendered to me nor served upon me. I had not authorized any one to receive the summons on my behalf. I say that Yash Pal had also no notice or knowledge of the suit. Yash Pal was not residing at Delhi on 09.12.1997, the date on which the summons were allegedly served on him through me. He was living in Amritsar then.

"I say that I had came to know about the suit for the first time on inspection of the suit file on receipt of notice of the execution application. The application being I.A.No.2580/2005 seeking setting aside the ex parte decree was filed through our Advocate. I say that the contents thereof are all correct. The application is Ex.AW-1/1. The contents of the application have been verified by the accompanying affidavit dated 24.03.2005, which bears my signatures. I say that my application is correct."

13. In the witness box AW-1 Sunil Kumar tendered in evidence his affidavit

by way of evidence as Ex.AX and testified that he relied upon the documents

Ex.AW-1/1 and AW-1/2. It deserves to be mentioned that an objection was

raised by the learned counsel for the non-applicant/decree holder/plaintiff on

the exhibiting of the aforesaid documents for want of the originals, which was

recorded by the learned Joint Registrar and left open for consideration by this

Court.

14. I have heard Mr.Suryakant Singla, the learned counsel for the

applicants/defendants 1,3 & 4 and Mr.Sanjay Jain, the learned senior counsel

for the plaintiff/non-applicant. I have also gone through the records, which

show that the summons issued to the defendants 1,3 & 4 were served on

Mr.Sunil Kumar (the defendant No.3) , while the summons issued to the

defendant No.2 (Mr.Vijay Kumar) were served on the said defendant at the

premises of the defendant No.1 firm.

15. The legal position is not in dispute that by virtue of provisions of Order

XXX Rule 3 CPC, the service of summons upon one partner is service upon all

and, therefore, ordinarily the service of summons upon the defendant No.2, not

being in dispute, it could not have been claimed by the defendants 1,3 & 4, that

is, by the firm and the remaining two partners, that they had not been served

with the summons. However, in the instant case, the defendant No.2 is stated

to have retired from the firm on 31.03.1996. So far as the service upon other

defendants is concerned, the signatures of the defendant No.3 on the summons

issued to the defendant No.1 firm (M/s. Chaman Industries) and on the

defendants 3 and 4 are disputed.

16. In the course of hearing, the learned counsel for the

applicants/defendants placed strong reliance upon the deed of dissolution

Ex.AW-1/1. The learned senior counsel for the non-applicant/plaintiff

Mr.Sanjay Jain, on the contrary, contended that the deed of dissolution

Ex.AW-1/1 was a fabricated document, which had been conjured up to meet

the legal road block, that service of one partner is service upon all the partners

(Order XXX Rule 3 CPC). The service of summons upon Vijay Kumar

(defendant No.2), he pointed out, not being in dispute and the further fact that

Mr.Vijay Kumar had received the summons in the premises of the defendant

No.1 firm also not being in dispute, the defendants 1,3 & 4 had resorted to

falsehood to ward off execution of the decree against them. The learned senior

counsel further submitted that the retirement of the defendant No.2 from the

defendant No.1 firm was not supported by any other evidence except the

purported dissolution deed dated 31.03.1996 (Ex.AW-1/1), which had not been

proved in evidence. The onus of proving the same was upon the defendants,

who had produced only the photocopy of a copy. The defendants had not only

failed to produce the original, but even the carbon copy was suppressed. The

photostat copy did not bear the stamp. Then again, there was a blank in the

document where the amount payable to the defendant No.2 by virtue of his

retirement was to be filled in. The reason, quite obviously, was that if the

cheque number or bank account number was written, it would have been easy

to disprove the said document.

17. On carefully scrutinizing the document Ex.AW-1/1, I am inclined to

agree with the submission made by the learned senior counsel for the

plaintiff/decree holder that the defendants/applicants have miserably failed to

discharge the onus of proving the same. On a specific question put to AW-1

Sunil Kumar in the course of his cross-examination, though he denied the

suggestion that Ex.AW-1/1 was a fabricated document, he stated that he did

not know whether the dissolution deed was filed with the Income Tax or the

Sales Tax Deptt., and that he also did not know whether the Bank was

intimated about the dissolution of the firm. He stated that the firm Chaman

Industries was having an account in the Punjab and Sind Bank, Naya Bazar,

Delhi, and that all the brothers had signed the papers at the time of the opening

of the said account and also given the partnership deed to the bank. On

inquiring from the bank about the partnership deed, he was informed that no

such deed was lying in the bank. On another query put to him, he stated that he

inquired from his brother Yash Pal (the defendant No.4) about the lawyer or

the Chartered Accountant of the firm Chaman Industries, but the defendant

No.4 told him that he had no knowledge about this fact.

18. In further cross-examination AW-1 Sunil Kumar denied the suggestion

put to him that the firm Chaman Industries had to be closed down on account

of financial loss and stated that he had demanded Rs.20,000/- (Rupees Twenty

Thousand) per month from Mr.Vijay Kumar (the defendant No.2) out of the

income of the partnership firm, but latter had refused to pay the same. He had

agreed to pay him a sum of Rs.5,000/- (Rupees Five Thousand only) only,

which was not acceptable to him, (AW-1/1), hence the firm was closed.

19. It is not clear from the testimony of AW-1 Sunil Kumar whether the

defendant No.1 firm was a registered firm or not, whether the defendant No.1

firm was having any sales tax registration, whether the partnership deed had

been filed with the bank or with any other authority or not, who was the

chartered accountant and lawyer of the firm, whether any dissolution deed was

filed with the income tax deptt. or with the sales tax department or with the

bank. Had the firm been dissolved, it is inconceivable that the information of

the dissolution would not have been sent to the firm's bankers and the income

tax and sales tax authorities. As regards the plea of dissolution of the firm also,

shifting stands have been taken by the witness and the evidence of the witness

is full of inherent contradictions. Sometime, he states that the firm had been

dissolved on the retirement of one of its partners and was reconstituted on

31.03.1996 and at other times he states that the firm was closed as his brother

(the defendant No.2) refused to pay him Rs.20,000/- per month, as demanded

by him.

20. In the above circumstances, I have no hesitation in holding that the

applicants/defendants have miserably failed to discharge the onus placed upon

them of proving issue No.1 that the defendant No.2 had retired from the

partnership of the defendant No.1 firm on 31.03.1996. It being trite law that

service of one of the partners of the firm (in this case service upon the

defendant No.2, Vijay Kumar) must be construed as service upon all the

partners of the firm, ordinarily this by itself would have been sufficient to

dismiss the application of the defendants/applicants for setting aside the ex

parte decree against the said defendants. More so, as no explanation has been

given in the evidence as to how the defendant No.2 accepted the service of

summons at the premises of the firm when he had retired from the firm on

31.03.1996, and as to why the firm's counsel Mr.Arun Maitri, Advocate had

filed vakalatnama on his behalf. However, the issues having been framed by

this Court (Kaul, J), being issue nos.2 and 3, as to the authenticity of the

signatures of the defendant No.3 on the summons issued to the defendant

No.1,3 & 4 and as to whether the application discloses sufficient cause for

setting aside the ex parte decree against the said defendants, it is deemed

expedient to decide the same also.

ISSUE NO.2:

21. So far as issue No.2 is concerned, it pertains to the signatures of

Mr.Sunil Kumar (the defendant No.3) on the summons, which are disputed by

the defendant No.3. The mode sought to be adopted for disproving the

signatures is a unique one. Not only no handwriting expert has been produced

in the witness box to disprove his signatures on the summons, no

contemporaneous signatures of the defendant No.3 have been placed on the

record to enable this Court to discern the difference between the alleged forged

signatures of the defendant No.3 at points 'A' and 'B' of the affidavit Ex.AX

and the admitted signatures of the defendant No.3. The affidavit of the

defendant No.3 has admittedly been filed after the passing of the decree and

cannot be used for the purpose of comparison of the admitted signatures and

the alleged forged signatures. Indubitably also, the signatures of the witness

could have been proved through the bank records and through the partnership

deed, but the same have been suppressed from the Court and not even a scrap

of paper has been produced bearing the signatures of the defendant No.3 prior

to the passing of the decree, except the dissolution deed, which, as stated

above, does not appear to be a genuine document.

22. In view of the aforesaid, I have no hesitation in holding from the

solitary testimony of the defendant No.3, which is totally uncorroborated by

the testimony of any other witness, that the summons (Ex.PW-1/A)

purportedly served upon the defendants 1,3 & 4 bear the signatures of the

defendant No.3.

Issue No.2 is accordingly decided against the applicants/defendants.

ISSUE NO.3:

23. In view of my findings on issues No.1 & 2 above, the issue as to

whether the application discloses any sufficient cause for setting aside the ex

parte decree, has become an academic one. Section 106 of the Evidence Act

mandates that the evidence has to emanate from the person who is in the best

position to produce it. The burden of proving the issues framed by the Court on

the application for setting aside the ex parte decree was, therefore, squarely

upon the defendants, who have miserably failed to discharge the same. The

defendant No.3, as noticed above, has disputed his signatures on all the three

sets of summons issued to the defendants No.1,3 & 4, but has failed to produce

any record bearing his contemporaneous signatures, and the signatures relied

upon by him are all post-filing of the application. No handwriting export or

any other witness for that matter has been examined to disprove his signatures

on the summons, nor even the process server has been called in the witness

box. The dissolution deed, which was quite obviously set up to meet the legal

road block, created by the provisions of Order XXX Rule 3 CPC read with

Section 18 and 19 of the Indian Partnership Act that service upon one partner

is impliedly service upon all the partners, has also not been proved in evidence.

But, quite apart from the aforesaid facts, there are other circumstances, which

impel me to dismiss the present application for the setting aside of the ex parte

decree. The first is that had the intent of the plaintiff been to play a fraud upon

the defendants by forging the signatures of the defendant No.3 upon the

summons, why would the defendant No.2 be served. The service of the

defendant No.2 is not disputed by the remaining defendants, nor it is disputed

(as indeed it cannot be) that the vakalatnama filed on his behalf was filed by

the very same lawyer who had replied to the legal notice sent by the plaintiff

prior to the filing of the suit, that is, Mr.Arun Maitri, Advocate. If the

defendant No.2 was unconnected with the defendant No.1 firm ever since

31.03.1996, why would the vakalatnama be filed by the firm's lawyer on his

behalf?

24. This is not the end of the matter. The whole edifice of the defendants'

case crumbles and falls when the cross-examination of AW-1 Sunil Kumar is

looked into. The story set up by the defendants/applicants is that they came to

know of the decree on inspection of the court records. The further story is that

AW-1 Sunil Kumar had seen the receipted copy of summons purportedly

received by him in the suit file and that he had also seen the receipted copy of

summons addressed to Yash Pal (the defendant No.4) which also allegedly

bears the signatures of AW-1 on inspection of the file along with his lawyer.

On cross-examination, however, AW-1 Sunil Kumar admitted that he had

never inspected the records. The relevant portion of his cross-examination is

extracted below:

Q. Did you personally inspect the court records before filing

the present application?

A. I have not seen or checked the records before filing the

present application.

25. In further cross-examination, the witness stated that the application

Ex.AW-1/2 (the present application) does not bear his signatures or the

signatures of his brother, the defendant No.4 at any point, though the

accompanying affidavit is sworn and signed by him. The question which crops

up is, if he never inspected the court records, then how is it stated in his

application that the signatures on the summons are not his? Even in the course

of his evidence, the signatures were not shown to him by his counsel on a

specific query put to him as to whether they were his signatures. The reason is

obvious enough, and, as a matter of fact, a close reading of his affidavit by way

of evidence also shows that he nowhere stated that the signatures on the

summons are not his. The affidavit has been cleverly drafted to state that the

summons addressed to him or to his brother Yash Pal were neither tendered to

him nor served upon him. He had not authorized any one to receive the

summons on his behalf.

26. In view of the aforesaid, there is sufficient evidence on the record to

show that all the defendants were duly served with the summons of this Court

in accordance with law. No sufficient cause has been made by the

applicants/defendants for setting aside of the ex parte decree passed against

them. The application is accordingly dismissed. In view of the false pleas

sought to be raised in the present application, the applicants/defendants are

burdened with costs of Rs.20,000/- which shall be tendered by them in the

Prime Minister's Relief Fund.

Ex.P.274/2003

In view of judgment and order passed in I.A. No.2580/2005, the

Execution Petition No.274/2003 be listed before the Roster Bench on

02.03.2009, after obtaining orders of Hon'ble the Chief Justice, for proper

orders/directions.

REVA KHETRAPAL,J FEBRUARY 09, 2009 dc