Tha Institute Of Chartered ... vs Shree Raj Travels & Tours Ltd.
2014 Latest Caselaw 3160 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           C.R.P. 30/2011

%                                                         JULY 17, 2014

THA INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA.
                                                ......Petitioner
                   Through: Mr.Rakesh Agarwal with Mr.Pulkit
                            Agarwal, Advocates.

                          VERSUS

SHREE RAJ TRAVELS & TOURS LTD.                              ...... Respondent
                  Through: None

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M.No.5005/2011

1.     For the reasons stated in the application, the delay of 78 days in the

filing the petition is condoned.

2.     Application stands disposed of.

C.R.P. 30/2011 & C.M.No.5004/2011
1.     None has appeared for the respondent/defendant for the last five dates

of hearing as per the order sheets of this Court. Even today no one appears



C.R.P.No.30/2011                                                Page 1 of 4
 for the respondent/defendant. I have, therefore heard the counsel for the

plaintiff/petitioner.


2.       This revision petition is filed under Section 115 Code of Civil

Procedure 1908 (CPC) against the impugned order of the court below dated

13.9.2010 by which the application filed by the defendant/respondent under

Order 9 Rule 13 CPC was allowed and the ex-parte judgment and decree

dated 25.10.2004 passed in the suit filed for Rs.6,42,790/- was set aside.


3.       As per the record the suit was instituted in the original side of this

Court.       Respondent/defendant was served in the suit and had appeared

through counsel. The suit was thereafter transferred, on account of change

of pecuniary jurisdiction of this Court, to the district court. The case of the

respondent/defendant is that after transfer of the suit, he was not served, and

therefore the suit has been decided ex-parte against the respondent/defendant

illegally.


4.       The fact of the matter is that the respondent/defendant after transfer of

the suit to the district court was issued notices for service at the Nehru Place

address, being the address of the respondent/defendant as given in the plaint.

No doubt, the notices issued by the court records that the office of the

respondent/defendant stood closed, and therefore the notices were fixed at
C.R.P.No.30/2011                                                     Page 2 of 4
 site, and     accordingly there was no         personal    service     upon        the

respondent/defendant, however, I may note that under Order 6 Rule 14A

CPC, it has been deliberately put in as a statutory obligation that if the party

to suit shifts his address, then it is incumbent upon such a party to file fresh

address so that whenever and wherever the fresh notices have to be served,

is known. A person cannot take advantage of his own wrong, more so, in

failing to comply of the statutory obligation to give fresh address. Also, it is

noted that the advocate who appeared for the defendant admittedly did not

seek discharge from the case when the case was transferred from the original

side of this Court to the district court and he has simply noted in the court

notices issued to him that he does not have instructions from the

defendant/respondent.


5.     It is to be noted that even the application filed under Order 9 Rule 13

CPC on 12.10.2009 is grossly barred by delay and laches and there is no

discussion of any substance whatsoever in the impugned order why the delay

should be condoned. The respondent/defendant was served in the execution

proceedings as many as 4 times on 26.12.2008, 29.01.2009, 12.02.2009 and

07.03.2009. The application under Order 9 Rule 13 CPC, therefore should

have been filed within one month from 26.12.2008 or at least within 30 days

C.R.P.No.30/2011                                                     Page 3 of 4
 from 29.1.2009 when the respondent/defendant was served at the Mumbai

address. There is, however, no explanation amounting to sufficient cause for

condoning the delay from February 2009 to October 2009 when the

application under Order 9 Rule 13 CPC was filed. The deliberate delay is

another step of the respondent/defendant to delay and defeat the execution of

the money decree passed against it.


6.     In view of the above, it is held that the respondent/defendant was

validly served after transfer of the suit from the original side of this Court to

the district court and that there was deliberate failure to file fresh address of

the respondent/defendant as per the statutory obligation of filing the fresh

address for service, and hence the ex-parte judgment and decree dated

25.10.2004 was validly passed.


7.     The appeal is accordingly allowed and the impugned order dated

13.9.2010 is set aside. The ex-parte judgment and decree dated 25.10.2004

will stand revived. Parties are left to bear their own costs.




                                                    VALMIKI J. MEHTA, J.

JULY 17, 2014 KA