Rakesh Kumar vs M/S Shree Ram Palace
2011 Latest Caselaw 1551 Del

             HIGH COURT OF DELHI AT NEW DELHI

                        C.M.(M) No. 724/2010

                              Date of Decision:- 17.03.2011


      Rakesh Kumar                             ...Petitioner
                             Through. Mr.D.S. Chadha, Adv.

                             Versus

      M/s. Shree Ram Palace              ...Respondent
                          Through: Mr.Pramod K. Sharma, Adv.

      CORAM:
      HON'BLE MR. JUSTICE S.L. BHAYANA

      1.     Whether reporters of local paper may be
             allowed to see the judgment?               Yes
      2.     To be referred to the reporter or not?     Yes
      3.     Whether the judgment should be referred in the
             Digest?                                   Yes
S.L.BHAYANA, J.

The present petition is filed under Article 227 of the

Constitution of India against the order dated 5.5.2010 passed by

the trial Court wherein the trial court has directed the petitioner

to deposit the entire decretal amount in the court within 10 days.

2. The facts necessary to be highlighted in the present petition

as alleged by the petitioner are that the respondent had filed a

civil suit bearing No. 190/2007 under Order 37 of the Code of Civil

Procedure Code, 1908, (hereinafter referred to as the "CPC") for

a sum of Rs.20,00,000/- against the petitioner. The suit was filed

on 9.8.2007 on the basis of cheque dated 11.9.2006, bearing

No.018066 for a sum of Rs.21,00,000/- which was alleged to have

been issued by the petitioner to the respondent in lieu of a

CM(M) No. 724/2010 P a g e 1 of 5 friendly loan that the respondent had allegedly given to the

petitioner and the petitioner had allured the respondent that he

will return it to him presumably within two months. When the

respondent has asked the petitioner to return the money, the

petitioner told him to encash the cheque on 15.10.2006.

Accordingly, the respondent presented the cheque for

encashment on 16.10.2006 and it got dishonored on 17.10.2006

with the remarks "insufficient funds". The respondent filed a suit

against the petitioner and in that suit the service on the

petitioner could not be effected as the name of the petitioner was

wrongly written in the plaint as Rajesh Kumar instead of Rakesh

Kumar. The respondent moved an application under Order 6 Rule

17 of the CPC to amend the plaint which was allowed by the Trial

Court on 9.1.2008 and name of the petitioner was corrected as

Rakesh Kumar. Fresh summons were issued to the petitioner for

20.2.2008. On the next date of hearing the summons sent by

registered A.D. post were received back with the postal report

"Refused". Therefore, the Trial Court held that the petitioner was

duly served and the Court proceeded against him ex-parte and

also held that the summons sent in the ordinary manner were

also duly served on the petitioner on 9.2.2008. The trial Court has

observed in its order dated 1.4.2008 that the petitioner had failed

to appear within ten days of the service, therefore the suit was

decreed against the petitioner in the sum of Rs.20,00,000/-

together with pendente lite interest at the rate of 9% per annum.

CM(M) No. 724/2010 P a g e 2 of 5

3. The respondent filed an execution petition against the

petitioner. On 13.4.2009 the police official's came to the

residence of the petitioner and threatened his wife that they

would arrest her husband.

4. The petitioner engaged a counsel who informed the

petitioner that an ex-parte decree had been passed against him.

The petitioner, thereafter, moved an application on 18.4.2009

under Order 37 Rule 4 of the CPC before the Trial Court for

setting aside the ex-parte decree. The Trial Court disposed of the

said application vide the impugned order dated5.5.2010.

5. I have heard the arguments advanced by learned counsel

for the parties and carefully perused the lower court record. The

contention of the petitioner is that he was never served with any

summons by the Trial Court. The so called report of postal

authorities "refusal" on the registered cover was procured and so

was the report of the process server. The report of the process

server was even otherwise defective and illegal as the signatures

of receipt on the summons were not that of the petitioner.

Learned counsel for the petitioner has further submitted that

earlier the summons were issued in the name of Rajesh Kumar

and after amending the plaint a false and frivolous report of

service upon the petitioner through process server has been

procured. However, the petitioner had never refused to receive

summons sent by the court. Further he submitted that the

petitioner came to know about this decree when police officials

CM(M) No. 724/2010 P a g e 3 of 5 came to the residence of the petitioner on 13.4.009 and

threatened to arrest the petitioner with regard to the execution

proceedings and only than he came to know that ex parte decree

has been passed against him.

6. On the other hand learned counsel for the respondent has

asserted that vide order dated 1.4.2008 the Hon'ble court also

observed that the service was effected on 9.2.2008 and the

petitioner herein did not enter his appearance within 10 days

therefore, the respondent herein was entitled for a decree

against the petitioner. Further counsel for the respondent has

submitted that it is an admitted fact that the alleged cheque was

issued by the petitioner himself to the respondent as collateral

security.

7. I have heard learned counsel for the parties. I have also

perused the registered envelope, wherein the postman has

reported "Refused". But the petitioner has asserted that this

report has been procured by the respondent from the postal

authorities.

8. The petitioner moved an application before the Trial Court

for setting aside the ex-parte decree and granting him leave to

contest the suit. The Trial Court has granted to the petitioner

conditional leave to contest the suit subject to his depositing the

entire decretal amount.

CM(M) No. 724/2010 P a g e 4 of 5

9. Since, the petitioner has taken a plea that he was not

properly served with the summons so he could not appear and

file an application for grant of leave to contest. He has further

submitted that the cheque issued by him to the respondent was

only in lieu of collateral security. The petitioner has submitted

that he has raised triable issues and that he be granted

unconditional leave to contest the suit.

10. Having heard learned counsel for the parties and in the

interest of justice, the prayer of the petitioner is partly allowed.

The petitioner is granted leave to contest the suit subject to his

depositing Rs.10,00,000/- ( Rs. Ten Lakh only) with the trial Court

in the shape of FDR within 60 days from today. With this

modification in the impugned order the petition is partly allowed.

11. The petition stands disposed of.

12. The copy of this order be sent to the Trial Court for

compliance.

                                                     (S.L. BHAYANA)
                                                           JUDGE
March 17, 2011




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