Smt. Nischint Arora vs United International & Co.
2010 Latest Caselaw 3139 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                      Date of decision: 07.07.2010

+                                    CS(OS) 1791/1995

       SMT. NISCHINT ARORA                                                ..... Plaintiff
                       Through Mr. Dinesh Agnani, Adv.

                      versus

       UNITED INTERNATIONAL & CO.                           ..... Defendant
                      Through Ms. Divya Keshar & Mr. Manmohit Puri,
                      Advs.

       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT

1.

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

2.     To be referred to Reporter or not?                  Yes.

3.     Whether the judgment should be                      Yes.
       reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT, J. (OPEN COURT)

%
IA No. 3514/2009 (delay) and IA No.3515/2009

1. By this application the defendant seeks setting aside of the ex-parte decree passed by the Court on 17.11.1997 in Suit No.1791/1995.

2. In IA No.3514/2009 the applicant seeks condonation of delay in filing the application alleging that it came to know about the decree only on 23.4.2008 when the Execution Petition No.19/1998 was served upon it and the previously engaged counsel did not render proper advice to move the Court for setting aside the petition. According to the averments made in IA No.3515/2009, the applicant defendant contends that the judicial record, particularly containing the service record indicating that defendant No.2 constantly remained unserved because the plaintiff did not provide the proper address. Learned counsel places reliance on the service reports dated 12.2.1996, 26.2.1996, 18.4.1996 and 21.5.1996, all of which unanimously state that summons issued were returned back unserved. It is emphasized that the Court proceeded to set

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 1 down the defendant/applicant ex parte on the basis of an affidavit of the plaintiff's representative, Shri Vijay Chawla who stated that on 13.3.1996 a Court notice was served at the defendant's Kirti Nagar address and that the defendant was not found to be living there. It is submitted that the Court was misled into setting down the defendant ex parte on the basis of the following averments made in the said affidavit:

"XXXXXX XXXXXX XXXXXX

5. The summons were then sent through Blue Dart to address of Defendant in Germany i.e. at Aster GMBH Branweiler Strabe 16, 5000, Kill 40 (Love Nich) Germany. The summons were returned as the defendant refused to accept the same. A copy of the letter from Blue Dart is enclosed as Annexure-A.

6. That the original summons for Delhi address and report of the Germany through Blue Dart express Limited with envelope receipt are attached herewith for court record as Annexure-B.

XXXXXX XXXXXX XXXXXX"

3. The affidavit indicates a letter from one Shri Datta of M/s Blue Dart which is annexure 'A'. The same is extracted below:

       "XXXXXX                       XXXXXX                       XXXXXX

       8th March, 1996

       To Warp & Wett
       New Delhi
       Kind attention: Mr. Vijay Chawla

       Dear Sir,

This has reference to Airwaybill No.400-2018-4975 dated 22.02.96 from Warp & Belt/New Delhi to Mr. Kiran Malhotra/Germay.

As informed to your earlier this shipment was lying undelivered at our Germany office as the address mentioned was not correct. On 02.03.96 you provided us a Telephone No. of the consignee which would have helped is in getting the correct address of the consignee. When Fedex, Germany got in touch with the consignee on 04.03.96, Mr. Kiran Malhotra refused to accept the package, because he said he did not know the shipper.

Please note as per your request we would return the package to you in India but prior to returning of this shipment, we need an International cheque in USD Dollars made in favour of Federal Express Inc. payable at Newyor or

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 2 Dubai, towards payment of return charges of the shipment from Germany to India. The return charges would be 45.58 US Dollars.

Please let us know by when would the International cheque be ready, only after the receipt of the same, will be package be returned to you. Awaiting an early revert from your end.

Sincerely yours,

Sd/-

Sharmistha Dutta Customer Service Executive.

XXXXXX XXXXXX XXXXX"

4. Learned counsel for applicant/defendant contends that the above would indicate that the plaintiff did not serve the defendant at the given address and that the only basis for affirming the service was the statement of the courier company about the corresponding agency, Fedex mentioning to them about having got in touch with the plaintiff on telephone and a letter having refused to accept the summons.

5. Learned counsel for the defendant submitted that having regard to the totality of circumstances, this Court has to conclude that provisions of Order V Rule 17 and 19, CPC were not complied with and, therefore, in the interest of justice, the judgment and decree dated 17.11.1997 has to be set-aside/recalled.

6. The plaintiff in its reply and through its counsel contends that application is misconceived. It is firstly submitted that the defendant has not shown any much less sufficient cause for having approached the Court belatedly only after decree dated 24.3.2008 was passed. Counsel emphasized that the order sheets in the execution proceedings reveals that the defendant entered appearance in August, 2008 and thereafter continued to be represented on subsequent dates of hearing and later moved the Court for setting aside the decree on 16.2.2009.

7. On the merits of the application for setting aside the decree, the plaintiff submitted that the concerned courier agency, namely M/s Blue Dart had intimated about the attempts to serve the defendant and that the Court was justified in believing the letter issued by the said agency. It is further submitted that the conduct of the defendant would reveal that despite repeated efforts, service was being evaded and that the Court should take notice of the fact that the courier is independent of either plaintiff or the defendant and had issued a certificate which is not only

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 3 credible but would stand a test of probability.

8. Before proceeding with the analysis of the rival submissions, it would be essential to extract the relevant provisions Order V Rules 17 and 19, CPC which are as follows:

"XXXXXX XXXXXX XXXXXX

17. Procedure when defendant refuses to accept service, or cannot be found

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 1[who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

19. Examination of serving officer.-Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

XXXXXX XXXXXX XXXXXX"

9. The facts here would reveal that the suit for recovery was filed by plaintiff in 1995. It was first listed on 4.8.1995 and later on 26.10.1995, 3.11.1995, 24.11.1995, 12.2.1996, 26.2.1996, 18.4.1996, 21.5.1996 and 16.8.1996. The relevant period here of interest to the Court is February to April, 1996. The order sheets would reveal that fresh summons were ordered on 12.2.1996 by ordinary process as well as dasti, returnable on 12.4.1996. The office report for ordinary process issued is to the effect that summons issued to the defendants were received back unserved. The office report for 21.5.1996 also states that summons issued to the first and second defendants for 18.4.1996 were received back unserved. However, the affidavit, which the Court relied on in its order dated 21.5.1996 was filed on 17.4.1996. The order of the Court setting down the defendant ex parte would indicate that complete reliance was placed on the affidavit of

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 4 service filed on behalf of the plaintiff.

10. The Court here discerns that the affidavit of Shri Vijay Chawla, the plaintiff's representative in turn relies upon the letter dated 8.3.1996 issued by M/s Blue Dart. The relevant portion of that letter states that the concerned shipment was lying undelivered as the address mentioned was not correct. It goes on to say that on 2.3.1996 a telephone number was provided by the plaintiff, which was apparently used to get in touch with the defendant on 4.3.1996, when the latter is alleged to have refused the packet since he did not know the shipper. The latter portion of the communication states that the packet would be returned in India provided an international cheque in USD could be issued. Record also reveals that the packet has been placed on record. What is important here is that in the normal course attempts to serve the defendants were made at the New Delhi address, all of which were unsuccessful. Repeated attempts to serve at the alternative address were also unsuccessful. The affidavit of service is only basis for the plaintiff to say that the defendant was served; it relies on the letter of the courier agency, M/s Blue Dart which in turn relies upon a communication from Fedex. It is not as if Blue Dart is a designated courier agency of this Court. That facility was accorded after the amendment of the Code of Civil Procedure in 2002. More so the plaintiff has not also relied upon the deposition of any person responsible from M/s. Blue Dart. The reference to a telephonic conversation about the defendant refusing to accept the service is an extremely tenuous basis for deeming service of summons.

11. Having regard to the circumstances, this Court is satisfied that the order dated 21.5.1997 was made without taking into account all these circumstances. The defendant was in fact not served in accordance with the provisions underlies Order V Rule 17 and 19 CPC. So far as the plaintiff's objection to the maintainability of the application on the ground that the same is time- barred is concerned, no doubt the record would reveal that defendant was served in April, 2008 and it shows that it appeared before the Court in the execution proceedings. The defendant has moved this Court in February, 2009 and there is no reason why the application would have been intentionally delayed, as is suggested by the respondent. At best, the lapse indicates inadvertence which should not visit the defendant with irrevocable consequences so as to preclude it from contesting the suit on merits. The prejudice is compensatable in terms of cost.

12. In view of the above conclusion IA No.3515/2009 is allowed, subject to the defendant paying Rs.75,000/- to the plaintiff as costs within four weeks.

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 5 CS(OS) No.1791/1995 The defendant shall file written statement within six weeks. The plaintiff shall file replication, if any, within two weeks. Parties are directed to complete admission/denial of documents within eight weeks from today.

List before the Joint Registrar on 22.9.2010, for scrutiny. List before the Court on 11.1.2011.

S. RAVINDRA BHAT (JUDGE) JULY 07, 2010 aj

I.A. Nos. 3514/2009 & 3515/2009 in CS(OS) 1791/1995 Page 6