Surender Goyal vs Vikram Malhotra
2017 Latest Caselaw 3199 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 289/2017

%                                                       12th July, 2017

SURENDER GOYAL                                           ..... Appellant
                          Through:       Mr. S.S.Sastry, Mr. Rajesh
                                         Pandit and Mr. Siddharth Jain,
                                         Advocates.
                          versus

VIKRAM MALHOTRA                                         ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The first appeal under Order XLIII (1)(d) of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/defendant

impugning the judgment of the court below whereby the court below

has dismissed the application under Order IX Rule 13 CPC filed by the

appellant/defendant as also the connected application for condonation

of delay.

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

a suit for recovery of Rs.4,72,633/- against the appellant/defendant

pleading that the appellant/defendant had placed orders for supply of

sarees and had received the sarees from time to time. It was pleaded in

the plaint that as per the accounts regularly maintained there was a

huge outstanding amount of Rs.4,80,933/- and to clear which the

appellant/defendant had issued five cheques as stated in para 5 of the

plaint and which were dated 28.4.2013, 7.5.2013, 14.5.2013, 21.5.2013

and 28.5.2013. Out of the five cheques, cheques dated 28.4.2013 and

14.5.2013 were presented but were dishonored. The

respondent/plaintiff had further pleaded in the plaint that the

respondent/plaintiff did not deposit the balance three cheques as the

appellant/defendant had so requested because of lack of funds. It was

further pleaded in the plaint that the appellant/defendant only thereafter

paid a sum of Rs.60,000/- leaving a balance of Rs.4,20,933, and that

since in spite of service of legal notice dated 28.5.2014 by registered

post and speed post the appellant/defendant did not pay the amount

due, hence the subject suit was filed.

3. In the suit appellant/defendant was served but he failed to

appear and hence was proceeded ex-parte. Respondent/plaintiff

thereafter led evidence. The trial court after discussing the evidence

led, including the documents exhibited as Ex.PW1/1 to Ex.PW1/20

being the cheques and invoices as also the legal notice, decreed the suit

for Rs. 4,20,933/- along with interest at 6% per annum.

4. The subject applications under Order IX Rule 13 CPC and

Section 5 of the Limitation Act, 1963 were filed by the

appellant/defendant in November 2016 although the

appellant/defendant admittedly came to know about passing of the ex-

parte judgment on 31.4.2016. There are twofold issues in this case

which require determination. Firstly, whether the appellant/defendant

was ever served in the suit because if the appellant/defendant was not

served in the suit, the ex-parte judgment could not have been passed.

The second issue is whether the appellant/defendant has given

sufficient cause for non-appearance.

5. The last para of the impugned judgment shows that the

court below has observed that the case of the appellant/defendant that

he was never served is shown to be false not only because of the

tracking report with respect to summons sent by the registered post but

also because in the judicial record there appears an AD card bearing

the signatures of the appellant/defendant and which signatures have not

been denied by the appellant/defendant in the application for setting

aside the ex-parte decree. I may also note that even in this appeal filed

there is no specific ground urged by the appellant/defendant that the

AD card appearing in the judicial record of the suit does not bear the

signatures of the appellant/defendant. Therefore, the

appellant/defendant was duly served in the suit but he failed to appear

in the suit and hence the suit was rightly decreed ex-parte after the

respondent/plaintiff's evidence was considered by the court.

6. Accordingly, there is no ground for setting aside of the ex-

parte judgment and decree dated 27.2.2015 on the ground that the

appellant as a defendant was not served in the suit.

7. The next reason to be examined is whether the

appellant/defendant had sufficient cause for non-appearance. In my

opinion, this ground has been rightly rejected by the court below in the

facts of the present case because appellant/defendant wrongly pleaded

that he was never served in the suit and that he came to know of the

suit only in April 2016 when he received the certified copy of the

judgment and decree dated 31.4.2016, and there is no explanation

given in the applications under Order IX Rule 13 and Section 5 of the

Limitation Act for non-appearance of the appellant/defendant in the

suit and for setting aside of the order since the passing of the order

dated 18.12.2014 whereby the appellant/defendant was proceeded ex-

parte in the suit.. Putting it in other words, the appellant/defendant had

to explain delay not from April 2016 till the filing of the application

under Order IX Rule 13 CPC on November 2016 but the delay had to

be explained from 18.12.2014 till November 2016 when the

application under Order IX Rule 13 CPC is filed, and which has not

been done. The only explanation is for condonation of delay from

April 2016 to November 2016 and which explanation has also been

rightly disbelieved by the court below by observing that the accident

which is mentioned to have happened of the appellant/defendant is

much earlier of August 2015 than April 2016, and which accident is of

falling from the scooter. The further important fact noted by the court

below is that the only injuries mentioned in the discharge summary

showed blunt trauma on different parts of the body with swelling in the

leg, and therefore, there is no head injury as is claimed by the

appellant/defendant.

8. Accordingly, I do not find any reason to interfere with the

impugned order. Dismissed.

JULY 12, 2017/ib                            VALMIKI J. MEHTA, J