Jai Kishan Gupta vs Hindustan Paper Corporation Ltd.
2011 Latest Caselaw 2758 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 359/2008
%                                                       May 23, 2011

JAI KISHAN GUPTA                                        ...... Appellant
                                 Through:   Mr. Nitin Soni, Advocate

                          VERSUS

HINDUSTAN PAPER CORPORATION LTD.                        ...... Respondent

                                Through:     Mr. Nikhilesh Krishna, Advocate.

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

1.       The challenge by means of this first appeal under Order 43 CPC is to

the impugned order dated 11.7.2008 which dismissed the application of the

appellant under Order IX Rule 13 CPC for setting aside the ex parte money

decree dated 5.5.2004. As per the decree, the respondent/Hindustan Paper

Corporation Ltd./Public Sector Undertaking, was held entitled to a decree for

a sum of Rs.10,17,285.47 with respect to the stock of paper supplied by it to

the appellant/defendant.

2.       The only issue before the trial court was as to whether the

appellant/defendant was served in the suit. This aspect is dealt with by the

trial court and the issue decided against the appellant by giving the

FAO 359/2008                                                               Page 1 of 6
 aforesaid observations:-

         "(B)    Now, the short question is left to be decided is
         whether there was bona-fide or sufficient cause for the
         defendant to appear and contest the present suit or was
         there any circumstance, which prevented the defendant from
         appearance in the Court.         The following reasons and
         conclusions proved that neither there was any sufficient
         cause nor bona-fide to permit the applicant/defendant's the
         second and the first application:-

           (i)   the defendant is not an illiterate person but an
          educated business;

            (ii) the defendant was sent two summons, one in the
          name of Shri Jai Kishan Gupta, proprietor (defendant
          no.1) and another summon in the name of M/s Jackson
          Mayo & Associates (defendant no.2); both the summons
          were received by the defendant, as per the
          acknowledgment on the summons itself.
                 Only the summons meant for the defendant no.2,
          the defendant had received copy of the plaint. Whereas,
          summons were received without copy in respect of other
          summon. To say, copy of the plaint was received by the
          defendant;

           (iii) the summons received by the defendant were not
          only bearing suit number (i.e the then Suit No.577/00)
          besides date of hearing 15.01.2001 at 10:30 A.M, the
          name of the suit;

           (iv) the copy of the plaint under order XXXVII CPC has
          also placed on record and on the face of the plaint of
          Order XXXVII CPC, not only the amount stated (i.e.
          Rs.10,27,212/-) is different from the present suit for
          Rs.10,17,285.47p but also the previous suit depicts
          summary suit under order XXXVII CPC, the defendant,
          being an educated, is expected to have gone through
          both the suits;

               (v)   the suits were bearing different suit numbers;

           (vi) in case of summary suits, the summons on the
          prescribed form do not decipher the date of hearing.

FAO 359/2008                                                          Page 2 of 6
           Whereas, in the present case, the summons were
          depicting next date of hearing;

            (vii) it is undisputed that Shri S.C.Sarda, Advocate is
          representing the defendant in another Suit No.269/00;

           (viii) the plaintiff filed reply to the application on
          22.09.2006, raising an objection that an affidavit of Shri
          S.C.Sarda, Advocate, has not been filed in support of the
          application but the defendant placed on record the
          affidavit dated 01.09.2007 of Shri S.C.Sarda, Advocate
          along with the written submissions filed on 17.05.2008,
          without any explanation or reasons, as to why the
          affidavit was not filed earlier;

            (ix)  when the defendant is an educated person, he
          was having not only summons of the case but also copy
          of the plaint and there was an occasion for him to go
          through the same, particularly when there was huge
          amount of suit, which makes any imprudent person
          cautious by seeking instructions or advises telephonically
          from Shri S.C.Sarda, Advocate or Shri S.C.Sarda,
          Advocate without going into written merits of the plaint,
          had advised them not to bother, as if, the summons were
          received again in the same suit. It is not the situation of
          bona-fide but gross negligence or intentional avoidance
          from appearance in the Court;

           (x)   Since the summons along with the plaint received
          by the defendant speaks a volume, however, the
          defendant forming an opinion of its own or on the advised
          of other that it need not to appear or it is a repeated
          summon, would not constitute either sufficient cause or a
          cause, which prevented him from appearance in the
          Court;

            (xi) the plaintiff had specifically narrated in the plaint
          about filing of another suit under summary trial with
          further narration that the claim in the present case is in
          respect of the amount other than the amount claimed in
          the summary suit. How there was misrepresentation or
          concealment of feature of the other case, do not decipher
          from the record; and


FAO 359/2008                                                             Page 3 of 6
             (xii) the application under order IX Rule 13 CPC is also
           barred by Article 123 of Limitation Act, 1963."


3.    I have gone through the summons which were issued to the

appellant/defendant. There were two defendants in the suit. Defendant no.1

was the proprietor by name and defendant no.2 was the sole proprietorship

concern.   Therefore, the defendants no.1 and 2 are but the same person.

Summons were in fact delivered to the address as stated in the summons,

and which is the admitted address of the appellant. The process server has

reported that summons were duly served along with the copy of the plaint.

Summons with the endorsement are filed at page numbers 95 to 96A of the

appeal paper book.

4.    In my opinion, the findings and conclusions of the trial court

reproduced above are completely justified.      The trial court has rightly

dismissed the application under Order IX Rule 13 CPC because the appellant

was duly served with the summons and with which a copy of the plaint was

annexed.

5.    Learned counsel for the appellant placed reliance upon the decision of

the Supreme Court in     Nahar Enterprises Vs. Hyderabad Allwyn Ltd.

(2007) 9 SCC 466 to canvass that the service is not a proper service if the

summons are not accompanied by the plaint. Firstly, there is no dispute to

this proposition of law however in the present case the Process Server, a

government official, has reported that the summons were served along with


FAO 359/2008                                                           Page 4 of 6
 the copy of the plaint. In terms of Section 114 of the Evidence Act, 1872,

judicial and official acts are deemed to have been properly performed. I

would therefore not like to disbelieve the report of the Process Server which

records the fact that the copy of the plaint was served along with the copy of

the summons.

6.    I would also at this stage seek to refer to Second Proviso inserted by

virtue of the Amending Act 104 of 1976 w.e.f. 1.2.1977 to Order 9 (13) CPC.

This Proviso reads as under:-

            "[Provided further that no Court shall set aside a decree
        passed ex parte merely on the ground that there has been an
        irregularity in the service of summons, if it is satisfied that the
        defendant had notice of the date of hearing and had sufficient
        time to appear and answer the plaintiffs claim.]"

               The aforesaid proviso has been inserted by the legislature which

shows that a court shall not set aside a decree passed ex parte merely on

the ground that there has been irregularity in the service of summons, if the

court is satisfied that the defendant had notice of the date of hearing. In the

present case, I would seek to apply this proviso, inasmuch as, assuming that

the appellant did not receive the copy of the plaint, surely, he had notice of

the date of hearing in the suit and could have well appeared and asked for a

copy of the plaint/paper book in the court on the date of hearing.

7.    It is quite clear that the present proceedings have been filed to delay

and defeat the money decree passed in favour of the respondent and which

entitlement is because the appellant was bound to pay monies for the stock


FAO 359/2008                                                            Page 5 of 6
 paper received by him. There is no ground to interfere with the impugned

order.   The appeal therefore being without merit is accordingly dismissed

leaving the parties to bear their own costs. Trial court record be sent back.




May 23, 2011                                    VALMIKI J. MEHTA, J.

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