M/S Planman Media Pvt. Ltd. vs Sh. Pragnesh Patel
2017 Latest Caselaw 1985 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 180/2017

%                                                   24th April, 2017

M/S PLANMAN MEDIA PVT. LTD.                  ..... Appellant
                 Through:   Mr. Hem C. Vashist and Ms.
                            Ritu, Advocates.
                          versus

SH. PRAGNESH PATEL                                     ..... 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. 15154/2017 (delay of 436 days in filing the appeal)

In view of the fact that time was lost by the appellant/defendant

in pursuing a wrong remedy before this very Court, having wrongly

filed an RFA earlier, accordingly this application is allowed and delay

in filing of the present appeal is condoned.

C.M. stands disposed of

FAO No. 180/2017 & C.M.No. 15151/2017 (stay)

1. By this first appeal, the appellant/defendant impugns the

order of the court below dated 13.10.2015 whereby the application of

the appellant/defendant under Order IX Rule 13 was dismissed and the

court below refused to set aside the ex-parte judgment and decree

dated 13.12.2013 against the appellant/defendant for a sum of

Rs.5,38,244/- along with interest.

2. The suit was filed by the respondent/plaintiff that he was

forced to resign from the appellant/defendant company w.e.f

30.4.2012. It was pleaded in the plaint that the appellant/defendant

company however failed to pay the salary for the earlier three months

of February to April 2012, and therefore, for recovery of the said

amount of salary the subject suit was filed, and which was decreed ex-

parte against the appellant/defendant.

3. The court below has dismissed the application under

Order IX Rule 13 CPC by making the following observations:-

(i) Appellant/defendant was duly served in the suit along with

summons on 19.3.2013 inasmuch as the summons bear the stamp of

the appellant/defendant company.

(ii) The summons only mentioned that the same were received by

one Mr. Varun, and there was no mentioning in the summons of the

full name of Mr.Varun Verma, however, the appellant/defendant in the

application under Order IX Rule 13 CPC mentioned of receiving of the

summons by Mr. Varun Verma and which would only be if Mr. Varun

Verma was the employee of the appellant/defendant company i.e the

appellant/defendant knowing the surname of Mr. Varun as being

Verma.

(iii) The case of the appellant/defendant that the summons were

received by another company IIPM is a false stand inasmuch as

summons were not served not on IIPM, but what is written in the

summons is received at II PM i.e 2 P.M.

4. To the aforesaid conclusions of the Court below I would

like to add the fact that if really Mr. Varun Verma was not the

employee of the appellant/defendant company then it was not difficult

for the appellant/defendant company to file its list of employees which

would have been maintained by it as per its records, and as also filed

by it with various statutory authorities, and which the

appellant/defendant company however did not do.

5. The court below has given the following valid

observations in para 7 of its impugned judgment to dismiss the

application under Order IX Rule 13 CPC:-

"7. Perusal of record reveals that summons were served upon one Sh.Varun, Assistant Manager Legal Affairs II PM on behalf of defendant/ applicant /judgment debtor on 19.03.2013 with rubber stamp of defendant/ JD /applicant company having received on behalf of Plan Media Pvt. Ltd., as mentioned on the summons. Though the defendant/applicant /judgment

debtor took a defence that there was no employee namely Sh. Varun Verma whereas a perusal of notice/summons show that it was served upon "Varun". This summon has no mention of "Verma" but surprisingly in the application in consideration the defendant/applicant/ judgment debtor has used full name "Varun Verma" without disclosing as to how it is known that Varun has surname Verma. Secondly a contention has been raised that this Varun Verma might belong to IIPM which is different organization. I have seen the notations on summons which appears II PM denoting time of receiving of summons being two p.m. Thirdly the defendant /applicant/judgment debtor has given no explanation about a bold rubber stamp/seal placed on the summons carrying the name of the company as Plan Media Pvt. Ltd. In these premises it cannot be said that there was no employee of such name when the signatures are appearing with rubber stamp of defendant/applicant / judgment debtor. In the case of AIR 2003 Delhi 348 titled Parasarampuria Synthetics Ltd. Vs Shankar Prasad, Hon'ble Division Bench of Delhi High Court held that summons served on corporate office and company and received by employee of company who executed receipt affixing, seal of company, it cannot be said that service was bad or invalid. The defendant/applicant/ judgment debtor has failed to show existence of special circumstances to set aside the decree dated 13.12.2013. In view of the endorsement of defendant/ applicant / judgment debtor on the summons issued in the main suit the court is satisfied that defendant/applicant/judgment debtor had the notice of the date of hearing in the civil suit and it was the responsibility of the defendant/ applicant/judgment debtor to take necessary steps to defend the suit. The defendant /applicant/ judgment debtor willingly chose not to appear before the Court to take any steps or to put forth defence before this Court."

6. In view of the above, I do not find any merit in the appeal

and the same is therefore dismissed, leaving the parties to bear their

own costs.

APRIL 24, 2017/ib                                    VALMIKI J. MEHTA, J