Veena Tripathi vs Hardayal
2012 Latest Caselaw 3282 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:16.05.2012

+     C.R.P. 64/2012 and CM Nos. 8751-8752/2012

      VEENA TRIPATHI                                 ..... Petitioner
                   Through               Mr. Mahipal Singh Dral, Adv.

                   versus

      HARDAYAL                                      ..... Respondent
                            Through      Nemo.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

The order impugned is dated 03.05.2012; the executing court had

dismissed the objections filed by the judgment debtor under Section 47

of the Code of Civil Procedure (hereinafter referred to as 'the Code');

these objections are dated 01.05.2012.

Record shows that a suit for recovery had been filed by the

plaintiff-Hardyal against the petitioner/defendant-Dr. Veena Tripathi.

This was a suit under Section 37 of the Code ; plaintiff claimed to be the

owner of property bearing No. WZ-904, Nagal Raya, Main Pankha

Road, New Delhi -46; the basement, second and third floor were stated

to be in possession of the plaintiff; ground and first floor had been let

out to the defendant in 2001 @ Rs. 10,000/- for running a Nursing

Home where it was run under the name of Shubham. The defendant was

making irregular payments; on certain occasions cheques issued by the

defendant were bounced because of insufficient find. The present suit

has been filed on the basis of five cheques details of which find mention

in para 4 of the plaint. They are cheques dated 12.08.2001, 18.09.2002,

13.05.2003, 25.08.2001 and 18.09.2002; all in the sum of Rs. 10,000/-

except the last cheque which is in the sum of Rs.16,500/-; principal

figure of these cheques was Rs. 56,500/- and alongwith interest the said

amount was Rs. 59,380/-. After service of summons, the memo of

appearance was not filed by the defendant; she having failed to put in

appearance, the ex parte judgment and decree had fallen in favour of the

plaintiff on 20.12.2004; the suit was decreed in the sum of Rs. 56,350/-

alongwith interest @ 8 % per annum from the date of the filing of suit

till realization.

Thereafter an application under Order 37 Rule 4 of the Code had

been filed by the defendant; that application is not on record. Learned

counsel for the petitioner has fairly conceded that in the application

under Order 37 Rule 4 of the Code, he had pleaded 'special

circumstances'; the 'special circumstances' being that the defendant had

not been served with the summons of the suit and thus ex parte

judgment and decree dated 20.12.2004 is liable to be set aside;

admittedly, the question of fraud had never been raised by the

defendant; it was never his case that the decree has been obtained by

fraud for one reason or the other.

This application under Order 37 Rule 4 of the Code which was

filed on 17.04.2005 was finally dismissed on 28.07.2011; the court had

rejected the plea set up by the defendant that she had not been served

with the summons; court had returned a finding that 'special

circumstances' for setting aside the decree and judgment dated

20.12.2004 are not made out; application was accordingly dismissed.

Execution proceedings were filed; in the course of the execution

proceedings, the application under Order 47 of the Code was filed where

the first time the plea of fraud was set up. Relevant would it be to state

that the application under Section 47 of the Code only contains a three

line version in the first paragraph wherein it has been stated that the

decree holder has concealed a lease agreement dated 23.04.2008 and

rent receipts dated 23.04.1998, 20.08.2001, 25.09.2002, 20.05.2003 and

30.08.2003 which had been duly executed by him; how and what

circumstances these documents even presuming that they were created

only to make out a case of fraud have nowhere been detailed. In fact

specific queries have been put to the learned counsel for the petitioner

on the interlinking of these documents with the lease agreement and

rent receipts which was so alleged but he has no answer. As noted supra,

the instant suit is based on five cheques dates of which are noted above

and which in no manner connected with the rent receipts issued on the

dates mentioned above. This is also not the case set up by the defendant;

there is no such averment to the said effect. It is also not in dispute that

the plea of fraud has been set up by the defendant for the first time

before the executing court and never an averment in his application

under Order 37 Rule 4 of the Code wherein he detailed the 'special

circumstances' for setting aside the ex parte judgment and decree dated

20.12.2004. In these circumstances, the reliance by the learned counsel

for the petitioner upon the judgment reported in (1994) 1 SCC 1 titled as

S.P. Chengalvaraya Naid vs. Jagannath & Ors., VIII (2011) SLT 452

titled as Union of India & Ors. vs. Ramesh Gandhi and AIR 2004 Cal.

267 titled as M/s. Saraswat Trading Agency vs. Union of India & Ors.

is misplaced.

There is no doubt to the settled legal position that fraud vitiates all

transactions and any decree which has been obtained by fraud is 'non-

est', not legal and not binding. However, it is settled position that the

so called fraud must be prima facie shown by the party alleging the

fraud; as the averments made in the application under Order 47 of the

Code do not in any manner detailed the fraud; in fact there is only a

three line version in the entire application which makes a mention of the

concealment of certain documents but how the concealment of these

documents perpetuates a fraud has neither been explained in the said

application nor the counsel of petitioner has been able to answer to a

specific query put to the learned counsel on this count. It is also an

admitted fact that in the application under Order 37 Rule 4 of the Code

'special circumstances' had been alleged but plea of fraud was never

taken before that court. The impugned judgment had thus rightly noted

that in this factual scenario objections under Section 47 of the Code

have no force and were thus rightly dismissed.

Petition is without any merit; it is dismissed.

INDERMEET KAUR, J MAY 16, 2012 rb