Shri Sumit Arora vs Singh Motor Centre
2014 Latest Caselaw 324 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.28/2014

%                                                   17th January, 2014

SHRI SUMIT ARORA                                    ......Appellant
                          Through:       Mr. V.K. Kalra, Advocate.

                          VERSUS

SINGH MOTOR CENTRE                                  ...... Respondent
                 Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.898/2014 (condonation of delay)

             For the reasons stated in the application, delay of 25 days in re-

filing the appeal is condoned.

             C.M. stands disposed of.

+ FAO No.28/2014 and C.M. No.897/2014 (stay)

1.           This is an appeal filed under Order 43 Rule 1of Code of Civil

Procedure, 1908 (CPC) against the judgment of the Court below dated

29.7.2013 by which the application filed by the appellant/defendant under




FAO No.28/2014                                                  Page 1 of 4
 Order 9 Rule 13 CPC for setting aside the exparte judgment and decree

dated 27.8.2009 was dismissed.


2.           The facts of the case are that respondent/plaintiff filed the suit

against the appellant/defendant for recovery of the principal amount of

Rs.7,79,679/- alongwith interest on account of the appellant/defendant

having got filled the petrol/diesel from the petrol pump of the

respondent/plaintiff. At first the appellant/defendant paid as per the fuel

purchased but thereafter he requested for credit facility which was granted

by the respondent/plaintiff. The appellant/defendant however did not pay

the amount for the fuel which was filled in his vehicles in the year 2005, and

this resulted in the principal        amount due as         claimed   by the

respondent/plaintiff. The respondent/plaintiff ultimately sent a legal notice

dated 5.10.2006 to the appellant/defendant, which too failed to yield any

result, and therefore, the subject suit under Order 37 CPC was filed. The

appellant/defendant was first served under Order 37 CPC by means of

publication in the newspaper 'Statesman' inasmuch as in spite of repeated

efforts, the appellant/defendant could not be served. It is worth mentioning,

and as noted by the trial Court, the address of the appellant/defendant in this

plaint is the same address as is given by the appellant/defendant in his

FAO No.28/2014                                                  Page 2 of 4
 application under Order 9 Rule 13 CPC.        Even after the publication in

'Statesman',     the    appellant/defendant   did   not   appear.           The

respondent/plaintiff subsequently converted the suit from Order 37 CPC to

an ordinary suit for recovery of money and once again notices were

repeatedly sent to the same address of the appellant/defendant, but once

again the appellant/defendant could not be served and therefore for the

second time the appellant/defendant was served by means of publication in

the newspaper 'Statesman'.       It bears note that the legal notice dated

5.10.2006 was sent by the respondent/plaintiff to the appellant/defendant at

the same address and AD card shows the same as signed by the

appellant/defendant. The newspaper publication was also sent under the

postal certificate dated 28.4.2008 to the appellant/defendant at the

same/subject address.

3.             Learned counsel for the appellant/defendant argued that

appellant/defendant should get an opportunity to appear in the suit and prove

his case that in fact he had made payment of the amounts due to the

respondent/plaintiff, but on a query of the Court as to how the amounts were

paid, and whether the appellant/defendant has any receipt, it was informed to

the Court that the huge amount running into lacs of rupees was allegedly

FAO No.28/2014                                                Page 3 of 4
 paid by the appellant/defendant       in cash without taking any receipt for

payment and without even seeking return of the cheques which were given

by the appellant/defendant to the respondent/plaintiff.      Clearly therefore

even on merits the appellant's case lacks bonafides. The object of judicial

process is not to enable persons such as the appellant/plaintiff to keep on

deliberately avoiding the court process, and when execution proceedings are

filed thereafter file an application under Order 9 Rule 13 CPC for setting

aside the money decree which is passed for goods received i.e fuel supplied

in this case.


4.              In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




JANUARY 17, 2014                              VALMIKI J. MEHTA, J.

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