Simplex Projects Limited vs Jai Bansal
2013 Latest Caselaw 2502 Del

*                    HIGH COURT OF DELHI AT NEW DELHI
+          F.A.O. No.424 of 2012 & C.M. No.17455 of 2012 (for stay)

                                        Decided on : 27th May, 2013

SIMPLEX PROJECTS LIMITED                ...... Appellant
             Through: Mr. S.D. Singh, Advocate.

                         Versus

JAI BANSAL                                           ...... Respondent
                       Through:   Mr. Ajay Kumar Porwal, Advocate with
                                  respondent in person.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is an appeal filed by the appellant under Order 43 Rule 1 (d)

CPC against the order dated 21.9.2012 passed by the learned Additional

District Judge in C.S. No.420/2010 dismissing the application of the

defendant/appellant herein under Order IX Rule 13 CPC on the ground

that the appellant was not able to show 'sufficient cause' for setting the ex

parte judgment and decree dated 8.2.2012.

2. I have heard the learned counsel for the defendant/appellant who

has vehemently contended that the learned trial court has fallen into an

error by not allowing the application of the appellant for setting aside the

ex parte decree as he was able to show 'sufficient cause'. The learned

counsel for the appellant has also relied upon two judgments of the Apex

Court passed in case titled Tea Auction Ltd. vs. Grace Hill Tea Industry

& Another; (2006) 12 SCC 104 and G.P. Srivastava vs. R.K. Raizada &

Others; (2000) 3 SCC 54.

3. So far as the learned counsel for the plaintiff/respondent herein is

concerned, he has contested the submissions made by the learned counsel

for the defendant/appellant and contended that the appellant has not only

tried to delay the disposal of the suit by not only absenting but has also

failed to show 'sufficient cause' for its non-appearance despite service. It

has also been stated that after the ex parte decree was passed on 8.2.2012,

the plaintiff/respondent had served a caveat on 19.3.2012 to the

defendant/appellant and despite this, the appellant did not take steps to

participate in the proceedings and had belatedly filed an application for

setting aside ex parte decree by contending that they derived the

knowledge about the ex parte decree having been passed against them

only when the order of attachment was passed. It has further been stated

that the ex parte decree has since been executed and the decretal amount

realized, therefore, there is nothing which deserves to be tried by the trial

court after setting aside the ex parte decree.

4. I have carefully considered the rival contentions and have gone

through the impugned order. The plaintiff/respondent herein filed a suit

for recovery of `5,97,660/- along with pendent lite and future interest

against the defendant/appellant, which is a company. The case of the

plaintiff/respondent was that he had executed the work order dated

15.1.2010 for supply of skilled and unskilled workers to the defendant

company for construction work at Talkatora Stadium, New Delhi and the

defendant/appellant had paid only part of the amount of the bill raised by

him while as there was an outstanding of nearly `5,97,660/- on account of

the principal as well as the interest payable by the defendant/appellant. It

was alleged that despite repeated requests to clear the outstanding

amount, the defendant/appellant had failed, as a consequence of which,

the plaintiff/respondent was constrained to file the suit for recovery.

5. The defendant/appellant despite service, failed to appear as a

consequence of which, they were proceeded ex parte and an ex parte

decree for the suit amount was passed against the defendant/appellant on

8.2.2012.

6. The defendant/appellant filed an application for setting aside the ex

parte decree on 18.8.2012. The reason which was given by the appellant

in the application for setting aside ex parte decree was that the summons

of the suit were received by one girl by the name of Ms. Shalini

Chakraborty working in the office of the appellant, who was a mere

trainee for a few days only and she was neither authorized to accept the

notice nor did she bring it to the notice of the company as a consequence

of which the proceedings went unattended. It was stated that the

plaintiff/respondent had not adopted other modes of effecting the service

on the defendant/appellant as a consequence of which the

defendant/appellant was prevented by 'sufficient cause' from contesting

the matter.

7. The plaintiff/respondent had contested the claim and stated that not

only the defendant/appellant had been served but they have deliberately

kept away from the proceedings only with a view to delay the disposal of

the suit. It was also stated that after the decree and judgment was passed,

the appellant was also served with a copy of the caveat on 19.3.2012 so as

to make them aware about the pronouncement of the ex parte decree.

8. I have carefully considered the submissions. The explanation

which has been given by the appellants for their non-appearance is that

the summons were served on one Shalini Chakraborty, who was working

as a trainee in the company. The trial court had asked the

defendant/appellant company to produce the record regarding

appointment of Shalini Chakraborty as a trainee, whereupon a letter dated

23.7.2010 was filed to the effect that she had proceeded on some

vocational training from 1.8.2010 to 30.9.2010. The trial court examined

the summons which had not only the signatures of Shalini Chakraborty

but also stamp of the appellant company and, therefore, it did not believe

the version of the appellant. The judgments which were cited by the

appellant were also distinguished by the trial court especially the one

passed in G.P. Srivastava's case (supra).

9. Feeling aggrieved, the appellant filed the present appeal. I have

gone through the record. There is no dispute about the fact that the

appellant had been served. Even if we accept Shalini Chakraborty to be

trainee, then the trainee would, at the first instance, not accept the

summons which are received from the court, without the authority or

without bringing it to the knowledge of the superior officials. Moreover,

the summons which have been received, bears the stamp of the appellant

company. The appellant company is a big construction company and

obviously, it must be having a receipt and a dispatch section where the

letters or summons or other documents are received and dispatched. This

register of receipt and dispatch has not been proved or the relevant entry

around the day when the service was purportedly effected, has not been

shown by the appellant and prima facie I tend to agree with the finding

returned by the trial court and do not find any fault on this count. The

appellant also seemed to be reluctant to produce the record which was

sought by the trial court. They took flimsy pretext that appointment letter

of Shalini Chakraborty could not be produced as she proceeded on leave.

This clearly shows that the explanation given for the absence by the

appellant is not bona fide rather it is mala fide. Moreover, the decree has

already been realized, therefore, nothing survives. In my opinion, it will

be a retrograde step to reverse the finding and put the clock back and to

decide the suit on merit which will further take a decade or so. Seeing

the totality of facts, I feel that there is nothing illegal or improper in the

exercise of discretion by the trial court and accordingly the appeal is

dismissed.

V.K. SHALI, J.

MAY 27, 2013 'AA'