Delhi High Court
Pushpa Fabrics Private Limited vs Naveen Kochhar Proprietor M/S ... on 30 August, 2016
$~A-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: August 30, 2016
+ CM(M) 280/2016
PUSHPA FABRICS PRIVATE LIMITED ..... Petitioner
Through Mr.S.K.Gandhi, Advocate.
versus
NAVEEN KOCHHAR PROPRIETOR M/S NAVEEN
ENTERPRISES ..... Respondent
Through Mr.J.C.Mahindro, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present petition is filed under Article 227 of the Constitution of
India to impugn the order dated 16.02.2016 by which an application under
Order 9 Rule 13 CPC for setting aside the ex parte decree dated 27.04.2013
filed by the respondent was allowed.
2. The petitioner filed a suit for recovery of Rs. 17,06,550/-. On
27.07.2011, the trial court noted that the summons issued against the
respondent by way of registered post have been received with the report that
the respondent has refused to accept the summons which amounts to valid
service. As none had appeared, the respondent was proceeded ex parte. An
ex parte decree was passed on 27.04.2013.
3. The respondent thereafter moved the present application stating that
they were never served with any summons and had no knowledge about the
pendency of the suit till 05.05.2014, when the bailiff visited the premises of
the family concern of the respondent.
4. The trial court framed issues on 24.01.2015 and parties were granted
an opportunity to lead evidence. The respondent examined five witnesses
whereas the petitioner did not examine any witness. The trial court noted that
the respondent has tried to establish that the address at which summons were
sent and tendered does not belong to him and summons were not sent at the
correct address. The trial court rejected this contention. On the second issue
regarding the report of refusal sent by the postal authorities, the trial court
noted that the respondent entered the witness box and deposed on oath that
summons were not tendered to him by the postman. It further noted that the
petitioner failed to contradict the testimony of the respondent. The court
noted that the earlier order shows that the respondent was deemed to be
served on the presumption raised due to the refusal report of the postman.
The presumption drawn was a rebuttable presumption. The trial court
concluded that the respondent had entered the witness box and deposed that
no summons were tendered to him by the postman. He stood the test of
cross-examination. The trial court also relied on the other material on record
and concluded that the same supports the submission of the respondent. The
court also noted that the petitioner had failed to come to the witness box to
depose on oath regarding the service of summons or failed to summon the
concerned postal officials. According, the ex parte order was set aside.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the petitioner has relied upon the judgment of the
Supreme Court in the case of Gujarat Electricity Board & Anr. vs.
Atmaram Sungomal Poshani, AIR 1989 SC 1433 and Parimal vs. Veena,
AIR 2011 SC 1150 to contend that it is settled law that there is a
presumption of service of a letter sent under the registered cover, if the same
is returned back with a postal endorsement that the addressee refused to
accept. The presumption is rebuttable but the onus is on the person who
seeks to rebut the presumption. It is submitted that the onus was on the
respondent and not on the petitioner as the impugned order has wrongly
concluded.
7. The Supreme Court in the case of Gujarat Electricity Board & Anr.
vs. Atmaram Sungomal Poshani(supra) held as follows:-
"8. There is presumption of service of a letter sent under
registered cover, if the same is returned back with a postal
endorsement that the addressee refused to accept the same. No
doubt the presumption is rebuttable and it is open to the party
concerned to place evidence before the Court to rebut the
presumption by showing that the address mentioned on the
cover was incorrect or that the postal authorities never tendered
the registered letter to him or that there was no occasion for him
to refuse the same. The burden to rebut the presumption lies on
the party, challenging the factum of service. In the instant case
the respondent failed to discharge this burden as he failed to
place material before the Court to show that the endorsement
made by the postal authorities was wrong and incorrect. Mere
denial made by the respondent in the circumstances of the case
was not sufficient to rebut the presumption relating to service of
the registered cover. We are, therefore of the opinion that the
letter dated 24.4.1974 was served on the respondent and he
refused to accept the same. Consequently, the service was
complete and the view taken by the High Court is incorrect."
8. The above judgment was followed in Parimal vs. Veena (supra).
9. A perusal of the impugned order shows that the only alleged failure
observed by the trial court in the conduct of the petitioner is that the
petitioner did not come into the witness box and even failed to summon the
concerned postal officials.
10. In my opinion, it was not for the petitioner to have summoned the
concerned postal officials. That observation of the impugned order is
erroneous.
11. However, the trial court was justified in reaching the conclusion that
the respondent was not served on the material before it. The petitioner has
chosen not to lead any evidence whatsoever. It noted that the respondent had
entered the witness box and had stood the test of cross-examination. The
findings of fact recorded by the trial court are based on material on record
and there are no grounds to interfere in the same. The Supreme Court in the
case of Gujarat Electricity Board & Anr. vs. Atmaram Sungomal
Poshani(supra) had held that the presumption about service based on the
report of the refusal from the postal department is a rebuttable presumption.
The trial court has concluded that on facts, the respondent has show that
summons were not served upon him by the postal authorities.
12. In my opinion, there are no reasons to interfere with the findings of
fact recorded by the trial court. It is not for this court to substitute its
conclusion based on the evidence led by the parties. Accordingly, there is no
merit in the present petition and the same is dismissed.
13. All pending applications, if any, also stand dismissed.
JAYANT NATH, J.
AUGUST 30, 2016/rb
Signed on 22.12.2016
