Delhi High Court

M/S G.D.R. Enterprises & Anr. vs M/S Neelkanth Traders on 23 September, 2009

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

     FAO No.289 of 2009 & CM No.13132/2009

%            Judgment reserved on: 16th September, 2009

             Judgment delivered on: 23rd September,2009

1. M/S. G.D.R. Enterprises,
   3643, Shastri Market,
   Chowk Mori Gate,
   Delhi-110006.

2. Shri Prem Chand Jain, Partner,
   M/S. G.D.R. Enterprises,
   3643, Shastri Market,
   Chowk Mori Gate,
   Delhi-110006.                        ....Appellants.

                  Through: Mr. Ramesh Kumar Shokin
                           with Mr. Yashpal, Adv.

                  Versus

M/S. Neelkanth Traders,
2780/9, Shiv Tractor Market,
Hamilton Road, Mori Gate,
Delhi-110006.
(Through its Prop. Shti Dharambir)       ....Respondent.

                  Through: None.


Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                   Yes

2. To be referred to Reporter or not?                Yes



FAO NO.289/2009                                Page 1 of 9
 3. Whether the judgment should be reported
   in the Digest?                                           Yes

V.B.Gupta, J.

In this appeal, there is challenge to orders dated

13th August and 7th September, 2009, of Additional

District Judge, Delhi. Vide order dated 13th August,

2009, appellants‟ application under Order 9 Rule 13

read with Order 37 Rule 4 of Code of Civil Procedure

(for short as „Code‟) was dismissed. Thereafter,

appellants‟ application under Order 47 of the Code, for

review was also dismissed.

2. Brief facts are that respondent herein, filed suit

for recovery of Rs.5,55,232/- under Order 37 of the

Code, against appellants who did not appear, despite

service of summons. Trial court, vide order dated 23rd

May, 2009, decreed the suit of respondent.

3. It is contended by learned counsel for appellants

that respondent nowhere stated in the suit as to who

wrote amount and name of drawee in the cheque.

Appellants came to know about theft of a blank cheque

and they immediately reported the matter to Police.

4. Appellants did not receive any notice of suit.

They came to know only on 21st July, 2009, when notice

for execution was received by their employee,

Dharmender, who informed them, that in April, 2009

he had also received a notice and same is lying in his

bag. On inquiry, appellants came to know that said

Dharmender after receiving summons on 29th April,

2009, did not deliver the same to them. It was due to

negligence on the part of Dharmender, that appellants

could not pursue the suit since he never communicated

about summons to the appellants.

5. In support, learned counsel for appellants cited;

(i) Sushil Kumar Sabharwal v. Gurpreet Singh And Ors., (2002) 5 SCC 377;

(ii) G.P. Srivastava v. R.K. Raizada And Ors., (2002) 3 SCC 54 and;

(iii) Grafitek International v. K.K. Kaura & Ors., 88 (2000) DLT 56.

6. As apparent from order dated 23rd May, 2009,

despite service of summons, appellants did not appear

before the trial court. The court rightly decreed suit of

the respondent. As per appellants‟ own case, summons

was duly received by their employee, Dharmender on

29th April, 2009 but he did not inform them. When

service of summons has been duly effected upon

employee of the appellants, they were duty bound to

contest the suit. Appellants despite service, did not

contest. Trial court thus, rightly decreed the suit in

favour of respondent.

7. The court also held that, no sufficient ground has

been shown for setting aside the judgment and decree.

Relevant findings of trial court in this regard are;

"It is settled proposition of law that such like application as filed by the applicants/defendants under Order 9 Rule 13 CPC is not sufficient ground enough to set aside the judgment and decree passed under Order 37 CPC as defendants/applicants have to submit sufficient facts so as to constitute special circumstances under Order 37 Rule 4 CPC to set

aside the judgment and decree passed under Order 37 CPC. In catena of judgments it has been observed that special circumstance could only be the defence on merits of the case which the defendants have to put forward in addition to the sufficient grounds for the absence so as to get the judgment/decree set aside passed under Order 37 CPC. In the present case, no defence on merits of the case has been raised except vague averment as referred to above that the plaintiff has not approached this court with clean hands and has concealed the material and vital facts. These allegations are not sufficient grounds so as to consider even the defence of the defendants/applicants on merits of the case on which basis the defendants are entitled for leave to defend the suit under Order 37 Rule 3 Sub Rule 5 CPC. The vague defence as put forward in the application under Disposal by the defendants does not convince this court that the applicants/defendants have got any defence to raise who were admittedly duly served with the summons through their employee but failed to make appearance to defend the suit for such a long time and waited for notice of the execution of the decree as the present application was filed after the receipt of the notice of the execution of the impugned judgment and decree. The application is accordingly held to be devoid of any

merits and substance and the same is hereby dismissed."

8. Now, coming to order dated 7th September, 2009,

the court rightly observed that there has to be an error

apparent on the face of record of the order, of which

review is sought. It held;

"In the present case, no error on the face of the record is alleged whereas also it is not the case of the defendant/applicant that the facts as now narrated in the application so as to defend the suit were not within the knowledge of defendant/applicant or the same were discovered after passing of the impugned order. The defendant/applicant is neither diligent nor was able to exercise his rights when he filed earlier application which was dismissed by detail order dated 13.8.09. The application as such has got no merit and substance and liable to be dismissed."

9. It is well settled that "sufficient cause" (as per

Order 9 Rule 13 of the Code) for non appearance in

each case, is a question of fact.

10. This Court in New Bank of India Vs.M/s.

Marvels (India): 93(2001)DLT558, held;

"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen."

11. In various judgments referred by learned counsel

for appellants, it has been clearly laid down;

(i) that ex-parte decree can be set aside on

ground of non service of summons;

(ii) that defendant was prevented by any sufficient

cause from appearing and;

(iii) that dasti service is an insufficient service.

12. In the present case, admittedly, summons was

duly received by an employee of the appellants, namely

Dharmender, as early as on 29th April, 2009. Despite

service, appellants did not contest the suit. Under the

circumstances, trial court rightly decreed the suit of