Smt. Kanta Gupta @ Chander Kanta ... vs Sh. Narender Kumar Garg & Anr.
2014 Latest Caselaw 3022 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 171/2014

%                                                        9th July, 2014

SMT. KANTA GUPTA @ CHANDER KANTA GUPTA ......Appellant
                 Through: Mr. V.K. Agarwal, Advocate.


                          VERSUS

SH. NARENDER KUMAR GARG & ANR.                           ...... Respondents
                 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.10819/2014 (exemption)

1.           Exemption allowed subject to just exceptions.

             C.M. stands disposed of.

+ FAO No.171/2014 and C.M. No.10818/2014 (stay)

2.           This first appeal is filed under Order 43 Rule 1(d) of the Code

of Civil Procedure, 1908 (CPC) against the impugned order of the court

below by which the application of the appellant/defendant under Order 9

Rule 13 CPC has been dismissed.


FAO No.171/2014                                                  Page 1 of 3
 3.           The court below notes that though the appellant claims that she

was not served in the suit, however there was a report on record that

summons in the suit were accepted by son of the appellant/defendant. Once

that is so, service in law was held to be complete in terms of Order 5 Rule 15

CPC by service on an adult member of the family. Accordingly, nothing

turns on the aspect that the appellant/defendant stated that she was not living

in the property because the property was being constructed. I may note that

alongwith the application under Order 9 Rule 13 CPC which has been

dismissed by the impugned judgment, no affidavit has been filed of the son

of the appellant/defendant that the signatures appearing on the summons are

not his signatures. This in my opinion is sufficient not only to dismiss the

application under Order 9 Rule 13 CPC but also the present appeal.


4.           The suit in question which was decreed exparte for Rs.12 lacs

by the judgment and decree dated 8.3.2013 was a suit by the

respondent/plaintiff to claim double the amount of part price paid because of

the failure of the appellant/defendant/seller to sell the suit property for

consideration of Rs.80 lacs.     Advance amount paid was Rs.6 lacs, and

therefore relying upon the judgment of the Supreme Court in the case of

Satish Batra Vs. Sudhir Rawal (2012) 10 SCALE 393, the suit was decreed

FAO No.171/2014                                                    Page 2 of 3
 for double the amount of the advance price paid.

5.           In view of the above, I do not find any error in the impugned

judgment, and therefore the appeal is dismissed, leaving the parties to bear

their own costs.




JULY 09, 2014                               VALMIKI J. MEHTA, J.

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