Ralson Casting Limited vs New Globe Logistik Pvt.Ltd
2013 Latest Caselaw 4193 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+              FAO No.502/2012 & CM No.20721/2012 (Stay)

                                         Decided on : 17th September, 2013

RALSON CASTING LIMITED                     ...... Appellant
             Through: Mr.Tarun Dewan, Advocate.

                      Versus

NEW GLOBE LOGISTIK PVT.LTD.              ...... Respondents
             Through: Mr.K.C.Joshi, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM No.20723/2013 (Condonation of Delay) For the reasons stated in the application, the delay of 5 days in

filing the instant appeal is condoned.

The application stands disposed of.

FAO No.502/2012 & CM No.20721/2012 (Stay)

1. This is an appeal against the order dated 04.08.2012 passed by the

learned ADJ by virtue of which the application of the appellant/defendant

No.1 under Order 9 Rule 13 CPC was dismissed.

2. Briefly stated the facts of the case are that the respondent filed a

suit for recovery of `7,52,896/- against the present appellant. Notices

were ordered to be issued to the appellant. However, as the registered

office as well as the factory premises of the appellant were situated in

Ludhiana, the registered AD cover containing the notice which was sent

to the appellant was received back with the report of refusal. The trial

court took cognizance of the refusal report in its order dated 23.09.2004

and treated this as a valid service and waited till 2.10 PM whereafter the

appellant/defendant no.1 was proceeded ex parte. The suit was decreed

ex parte for a sum of `5,32,916/- along with interest @ 10% along with

cost. Thereafter the appellant filed an application on 06.03.2011 for

setting aside the ex parte judgment and decree stating that they learnt

about the judgment and the decree dated 06.05.2005 only when the bailiff

of the court of Additional District Judge, Ludhiana Courts came to the

registered office of the appellant/defendant No.1 at C-29, Focal Point,

Phase-2, Ludhiana for attachment of its properties. It is stated that

thereafter they engaged a counsel, got the record inspected and obtained

certified copies which were received by them on 22.03.2011 and they

filed the application for setting aside the aforesaid ex parte judgment and

decree. It has been stated that the appellant/defendant No.1 was never

served and the report of refusal purported to have been presented to the

court was actually a procured report by the respondent/decree holder.

Accordingly, it was prayed that the judgment and the decree be set aside

and they permitted to contest the matter.

3. The application of the appellant for setting aside the ex parte

judgment and decree was contested by the respondent. The learned trial

court dismissed the application by observing that the appellant had not

been able to show any 'sufficient cause' for non appearance and the

application made by the appellant that the report of refusal which was

given by the postal authorities was a procured report, was not accepted.

It was observed by the trial court that since the appellant had a registered

office as well as the factory premises at Ludhiana which was out of Delhi

therefore, the respondent as an individual did not have any wherewithal to

manipulate the postal authorities so as to obtain a report of refusal. It has

also been noted by the court that the issuance of the registered AD cover

was not done by the respondent, but it is done by the court's registry and

the respondent/plaintiff had only submitted the envelopes duly stamped in

which the summons/notices were sent to the appellant.

4. Feeling aggrieved, the appellant preferred the present revision

petition.

5. I have heard the learned counsel for the appellant.

6. It has been contended by the learned counsel for the appellant that

there was absolutely no justification for the appellant to have absented

thus not contesting the matter. More so, when they had allegedly a

plausible defence if permitted to have been proved, the respondent would

not have been able to get the ex parte judgment and decree against the

appellant.

7. As regards the report of refusal, it was stated that though the

appellant's case was that the respondent had played a fraud and procured

the report, but even if it is assumed that the report was not procured and

that fraud was not played by the respondent, certainly on one date itself

by obtaining a report of refusal, the court ought not to have proceeded ex

parte and it should have made another effort to serve the appellant by

other means including by way of substituted service also. I am of the

view because the respondent has not shown to this court that the process

was sent to the appellant on very many occasions and that he was

avoiding the service. Even the normal practice in courts is that when

processes are directed to be sent to the defendant or the respondent

invariably it is ordered to be sent by all modes which includes regd. A.D.

covers, courier, ordinary process etc. Nothing of this sort seems to have

been done in the instant case, moreover, court cannot oblivious to the fact

also that some of postmen are not up to the mark and prepare report

without even visiting the addresses on the letters. Therefore, the single

report with the absence of attendant circumstances do not persuade the

court to accept this report of refusal blindly.

8. It has been stated that the appellant is prepared to comply with such

terms and conditions by way of payment of costs so that it is permitted to

join the proceedings, file the written statement and contest the matter.

9. The learned counsel for the appellant has also relied upon the

judgments in Ram August Tewari and Ors. v.Bindeshwari Tewari and

Ors.; AIR 1972 Patna 142 and Sita Ram v. Kalawati; 1986 MPLJ 68.

10. I have gone through both these judgments and I do not consider

that the judgments are helpful to the appellant. The appellant is

admittedly a company having its registered office at C-29, Focal Point,

Phase-2, Ludhiana and factory premises at G.T.Road, Doraha. The trial

court has noted that the notices were sent to the appellant by way of

registered post and they were received back with the report of refusal.

The respondent had hardly any occasion to manipulate the service report

but still the fact of the matter remains that when the court orders service

on a party, it is not only one mode but by various modes like courier,

e.mail and by ordinary process. The purpose of this is to see that even if

there is mischief played by either side in respect of one process still some

process by the other mode be served on a party or the defendant as the

case may be so that it is not open to them to contend that he did not

receive the process or that he was not served meaning thereby the court

should not be dependent on the report of only one process in order to

proceed ex-parte against a party. It seems to look something more than a

mere refusal. In the instant case, it has not been shown that except once

when there is refusal there is anything on record to assume that it was

avoiding the service. Therefore, I feel though the refusal has to be treated

as service but in the peculiar facts and circumstances of this case when

the service is denied on affidavit, the appellant ought to have been given

an opportunity to contest the matter at least once though the same should

be subject to the terms as the court may put.

11. I accordingly direct the appellant to deposit the sum of `5,32,916/-

along with interest up to 31.07.2013 with the trial court before treating

the ex parte judgment and decree having been set aside and permitting

him to participate in the suit.

12. The aforesaid amount shall be deposited within a period of four

weeks of the first date of appearance before the trial court. The said

amount deposited should be kept in an FDR for such period as the court

may deem proper and it will be subject to such orders as the court may

deem fit.

13. With these directions, the appeal stands disposed of. The parties

are directed to appear before the trial court on 4.10.2013 at 2 P.M. The

trial court will give one opportunity to the appellant to file the written

statement within a period of 30 days in terms of the provisions of CPC.

V.K. SHALI, J.

SEPTEMBER 17, 2013/dm