Delhi High Court
M/S R.M.Enterprises vs Shri Radhey Sham Gupta on 6 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.5/2014 & CM No.126/2014 (Stay)
% 6th January, 2014
M/S R.M.ENTERPRISES ......Appellant
Through: Mr. Amarjit Singh Gambhir, Adv.
VERSUS
SHRI RADHEY SHAM GUPTA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal filed under Order 43 Rule 1(d) CPC impugns the
order of the Trial court dated 26.9.2013 by which the application of the
appellant/applicant/defendant under Order 9 Rule 13 CPC for setting aside
the ex parte judgment and decree dated 29.7.2002 was dismissed. The suit
was a suit filed for recovery of money for goods supplied.
2. The court below has dismissed the application under Order 9 Rule 13
CPC by giving the following findings:-
(i) Appellant/defendant claimed that it/he was not served in the suit, but
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that factum was incorrect because the registered cover of service in the suit
came back with the report on 25.5.2002 that on 21.5.2002, appellant-
defendant has refused to receive the summons.
(ii) Appellant-defendant, and who is the judgment-debtor in the execution
petition, claimed that it/he was served in the execution proceedings for
21.10.2011, however, no proof of service was filed by the appellant as
having been served for 21.10.2011 and this showed that actually
appellant/defendant/JD was watching the execution proceedings for at least
over half a dozen dates of hearings, and without service suddenly choose to
appear on 21.10.2011. The relevant facts in this regard are stated in para 4
of the impugned order and which I am not reproducing herein for the sake of
brevity.
(iii) Though the Trial court need not have, and was not required to go into
the merits, however, the trial court in order to satisfy its judicial conscience
with respect to any equity in favour of the appellant-defendant, has referred
to the facts of the suit that the appellant/JD was shown the statement of
account Ex.PW1/A showing the balance confirmation, and the appellant/JD
admitted to the confirmation, but only claimed payment by means of the
demand drafts. Though the trial court does not say so, but what the trial
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court means to say is that no reference to the demand drafts is made in the
pleadings or any copies thereof have been filed in the court record.
(iv) Trial court also notes that appellant/JD had also issued
necessary CST forms and which showed that transactions took place
between the parties with the appellant/JD as buyer and respondent-plaintiff
as seller.
3. Before me, counsel for the appellant argues that unless there is postal
receipt showing pre-payment of the registered cover charges, trial court fell
into an error in taking the factum with regard to service by means of
registered post on account of the report of postal authorities of 'refusal'. It
was also argued that appellant-defendant has rebutted the presumption by
filing an affidavit with respect to non-service.
4. In my opinion, both the arguments urged on behalf of the appellant
are misconceived and the trial court is justified in concluding that the basic
object of the appellant/JD/defendant, and who is liable to make payments for
goods received, is basically to avoid making the payment of dues, and also
playing hooky with the judicial process. The contention of the counsel for
the appellant is misconceived that there has to be filed a receipt of pre-
payment of the registered cover charges because in this case actually the
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postal cover showing refusal of the appellant/defendant was filed and
therefore, it is clear that there must be pre-payment of postal charges for
issuing of the registered cover. I in fact fail to understand the argument thus
addressed before me on behalf of the appellant, once otherwise, admittedly
there is an issued postal cover on record.
5. So far as the argument that the appellant has discharged the onus of
proof, I may state that onus of proof is not discharged in a case like this by
simply filing an affidavit. To discharge the onus on him the appellant if so
wanted; but it/he did not do; was to ask for framing of issues and
summoning of the postal record including the postman who made the report
of refusal, but neither in any grounds of appeal before this Court nor
anything in the trial court record, shows that the appellant has made any
such prayer/endeavour. Obviously this endeavour would not have been made
because before giving the refusal report the postman had visited the address
of the appellant/defendant, and refusal report was thereafter given. I may
also add that in a case under Order 9 Rule 13 CPC, it is perfectly open,
depending on the facts of each case, for the court to decide the case on the
basis of affidavits, and it is not necessary that evidence as in all cases under
Order 9 Rule 13 CPC has to be necessarily led. I am making this
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observation although in the present case there is nothing before me that the
appellant/defendant ever asked for framing of issues and leading of evidence
for rebutting the aspect of refusal of the registered post containing the
summons of the suit, and thus showing the agreement by the appellant-
defendant to the procedure of disposing of the application under Order 9
Rule 13 by affidavits.
6. As already noted above, the Trial court in para-6 of the impugned
judgment has shown that there is no equity in favour of the appellant-
defendant who had admitted balance confirmation as also the issuing of CST
forms which showed that he had received the goods under the subject
transaction.
7. There is therefore no merit in the appeal, and the same is dismissed,
leaving the parties to bear their own costs.
JANUARY 06, 2014/ib VALMIKI J. MEHTA, J.
