Ashish Goel & Ors. vs Prem Chand Gupta & Anr.
2010 Latest Caselaw 1830 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              C.M. (Main) No.1351 of 2008

%                                                                            08.04.2010

         ASHISH GOEL & ORS.                                      ......Petitioners
                                       Through: Mr. P.K. Rawal & Mr. Ajay Bahl,
                                                Advocates.

                                            Versus

         PREM CHAND GUPTA & ANR.                        ......Respondents
                             Through: Mr. N.S. Negi, Advocate.

                                                     Date of Reserve: 17th February, 2010
                                                            Date of Order: 8th April, 2010

         JUSTICE SHIV NARAYAN DHINGRA

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

1. The petitioner has assailed an order dated 29th February, 2008 passed by learned

Additional District Judge whereby an application of the petitioners under Order 37 Rule 4

CPC was dismissed.

2. Brief facts relevant for the purpose of deciding this petition are that the

respondents/plaintiffs filed a suit under Order 37 Rule 4 CPC on the basis of hundies

executed by the petitioner firm M/s. Mam Raj Mausadi Lal. The suit was filed for

recovery of Rs.7,49,325/-. The address given by the plaintiffs/respondents was the name

of the firm and Naya Bazaar. The plaintiffs had also made partners of this firm as parties

and their residential address was given as H-3/70, Sector 18, Rohini, Delhi. Notices were

issued by the court at the address of the petitioner firm and to the partners at their

residential address. The report of process server about the firm was that it was lying

closed, however, the notice sent to partners i.e. the petitioners/judgment debtors at their

residential address were not received by them and one of the judgment debtors, namely,

Mr. Neeraj Goel first told the process server that he was Mr. Neeraj Goel and took the

summons and when he saw that summons were in respect of suit, he refused to receive

them and told the process server that he was Atal Bihari Vajpayee (the then Prime

Minister) and refused to receive the summons. The process server noted this fact on the

summons and gave a report to this effect with his affidavit. Considering that the

defendants/petitioners were evading service, the trial court allowed substituted service of

the judgment debtors through publication in newspapers and the respondents were served

through substituted service. Since none of the petitioners (defendants before trial court)

put appearance, the trial court considering the facts of the case, passed a decree under

Order 37 CPC of the suit amount.

3. The suit was filed in April, 2005. This entire process of serving the defendants

initially through registered covers, ordinary process and then through publication

continued till 2006 and in the meantime, one of the plaintiffs had died and an application

under Order I Rule 10 CPC was made for impleading LRs of the plaintiff. This

application was allowed and decree was passed on 17th January, 2007. The defendants

moved two applications; one under Order 37 Rule 4 CPC accompanied with an

application under Order 37 Rule 3 (5) CPC alleging therein that the petitioners learnt

about passing of decree on 10th July, 2007. In the application for setting aside this decree,

defendant No.4 had taken a stand that he had moved to Nigeria so he was not aware of

filing of the suit by the respondents/plaintiffs. The other defendants/petitioners took a

stand that they were not served, the address of the firm in the suit was not correct and the

service was not proper. They took various grounds for setting aside the decree. All these

grounds have been dealt with by the learned Additional District Judge one by one. The

first ground taken by the petitioners was that the suit was filed by a dead person and a

decree passed in such a suit was nullity. The leaned Additional District Judge observed

that the suit was instituted by plaintiff No.1 for herself and on behalf of plaintiff No.2 in

her capacity as an attorney. Plaintiff No.2 was her husband and it was stated in the title of

the suit itself in the very first paragraph that the suit was being filed as attorney and her

husband was not well. Later on an application under Order I Rule 10 CPC was made by

plaintiff No.1 to bring on record LRs of deceased plaintiff No.2 and since she was the

sole LR, she was substituted in place of plaintiff No.2. Thus, she became the sole

plaintiff. This objection was, therefore, turned down and it was observed that even if

there was some defect in the suit, it was not vital.

4. Where there are two plaintiffs in a suit and a suit is filed by one on behalf of other,

the suit cannot be said to be incompetent. More so, when the two plaintiffs are husband

and wife and one files a suit as an agent of the other. Even otherwise a defect in the title

of the suit can be rectified by the plaintiffs even during pendency of the suit. In the

present case, plaintiff No.1 on death of plaintiff No.2 had rectified the title and had

brought it to the notice of court below that plaintiff No.2 had died. The plea taken by the

petitioner before the trial court was rightly turned down.

5. The other plea taken by the petitioner was that service of the defendants/judgment

debtors was not proper. The address of the firm given by the plaintiff of Naya Bazaar,

Delhi was not complete address since number and gali were not given. It is not the case

of the petitioners that the address given by the plaintiffs (respondents) was not the same

which was given by the petitioners themselves in the instrument of taking loan. The

petitioner firm was a known broker firm in Naya Bazaar and this is the reason that while

executing the document, the petitioners gave their address only as Naya Bazaar, Delhi. It

is not an unknown fact and court can take judicial notice of the fact that since petitioner

firm was a known firm in a bazaar, their name itself worked as address. It so happened in

this case also. It is not the case of the petitioners that the summons sent by court did not

reach the firm of petitioners or that the firm was not lying closed as reported by process

server and it was lying open and still the summons did not reach it.

6. A person who takes loan from another person has an obligation to inform him his

correct and current addresses. It was obligatory on the petitioners, being partners of the

firm M/s. Mam Raj Mausadi Lal trading in grain, sugar, rice, oil, kirana and general

merchant, to inform plaintiffs if they had closed their business and what was their latest

address. Unless the petitioners had informed the plaintiffs in writing about their address

and communicated the same to the plaintiffs, the plaintiffs were justified in believing that

the petitioners were still having the same address and plaintiffs were justified in giving

that address. The bonafides of the plaintiffs are clear from the fact that the plaintiffs gave

residential address of the partners which was a correct residential address. If one of the

partners of defendants firm had gone abroad without intimation to the plaintiffs, it was

fault of that person as it was his duty to inform plaintiffs of his latest address. The

plaintiffs were only supposed to give to the court the address known to the plaintiffs and

serve the defendants on that address.

7. It is writ large from the conduct of the defendants that they were not prepared to

receive the summons. The defendants/petitioners are all related to each other and they

were all partners of M/s. Mam Raj Mausadi Lal. They were residing at H-3/70, Sector

18, Rohini, Delhi. When the summons were sent at H-3/70, Sector 18, Rohini, Delhi, they

made mockery of the court process and instead of receiving summon, the partner of the

firm declared himself to be Prime Minister of the country and refused to receive the

summons. With this conduct of the defendants, it does not lie in the mouth of defendants

to say that the court should not have ordered substituted service by way of publication. In

fact, substituted service is meant for such persons only who evade the court process and

deliberately refuse to receive the summons or play fraud with the court by exhibiting

skills of not receiving summons. This is what was done by the respondents herein. The

court below, therefore, was perfectly justified in allowing application under Order V rule

20 CPC and allowing service through publication.

8. It is also seen that the petitioners had raised no defence worth name on merits in

the application. The only stand taken by the petitioners is that goods were received by the

plaintiffs against the due amount and after receipt of these goods, the amount payable to

the plaintiffs against instruments stood adjusted. No document worth name was placed

before the trial court to show any delivery of goods to either of the plaintiffs or

endorsement on the bill of such goods that this was against adjustment of the hundies.

Such a defence could not have been considered by the trial court being a sham defence.

9. I consider that the present petition has no force and is liable to be dismissed and is

hereby dismissed.

SHIV NARAYAN DHINGRA J.

APRIL 8, 2010 'AA'