M/S Fairgrowth Exports (P) Ltd. vs Sanjay Chaudhary
2017 Latest Caselaw 6170 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 429/2017

%                                                 6th November, 2017

M/S FAIRGROWTH EXPORTS (P) LTD.          ..... Appellant
                 Through:   Mr. Deepak Jain, Advocate.
                          versus

SANJAY CHAUDHARY                                      ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This First Appeal is filed under Order XLIII (1) (d) CPC

challenging the impugned order passed by the court below dated

8.8.2017 by which the application filed by the appellant/defendant

under Order IX Rule 13 CPC has been dismissed.

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

the subject suit against the appellant/defendant for recovery of Rs.

10,52,365/- along with interest pleading that respondent/plaintiff had

supplied various ladies suits etc to the appellant/defendant and the

appellant/defendant had issued various cheques for payment. These

cheques were however dishonoured, and therefore, after serving the

demand notice dated 4.1.2013 the subject suit was filed.

3. As the appellant/defendant failed to appear in the suit it

was proceeded ex-parte and the respondent/plaintiff proved his case

which resulted in ex-parte judgment and decree dated 25.9.2013. The

relevant paras of the judgment of the trial court dated 25.9.2013

showing that the respondent/plaintiff proved his case are paras 3 and 4

and which read as under:-

"3. In ex-parte evidence, plaintiff has examined himself as PW1 and proved the computerized statement of account Ex.PW1/1, Requisite certificate under Section 65 & 65B of The Evidence Act, Ex.PW1/1A, Receipted copies of invoices pertaining to the defendant Ex.PW1/2 to Ex.PW1/13, Returned cheques and bank memos Ex.PW1/4 to Ex.PW1/22, Legal Notice Ex.Pw1/23, Postal Receipt Ex.PW1/24, Courier Receipt Ex.PW1/25 and AD Card Ex.PW1/26. Plaintiff also narrated the facts of his case. The evidence was tendered by way of affidavit which was formally tendered on 13.08.2013 and the opportunity was closed.

4. I have heard Sh. G.K.Seth, Adv. Ld. Counsel for the plaintiff and carefully perused the file. In view of the walkover given by the defendant to the plaintiff in the lis, there is nothing to perceive that they had grievance against the quality, quantity of service provided by the plaintiff. No correspondence has apparently been exchanged between the parties in this behalf. The statement of account reflects that the cheques of part amount issued by the defendant in discharge of liability were returned unpaid quite frequently. Nevertheless, the relationship somehow continued between the parties for about one and a half years. Manifestly, the plaintiff pressed for payments and was able to secure cheques Ex.PW1/14, Ex.PW1/16, Ex.PW1/18, Ex.PW1/20 & Ex.PW1/22 from the defendant but for reasons not disclosed to the court their payment was stopped by the drawer."

4. Appellant/defendant thereafter was served in the

execution proceedings, and it was pleaded by the appellant/defendant

that the appellant/defendant came to know only on 16.3.2015 of the

judgment and decree having been passed against it. The relevant paras

of the application under Order IX Rule 13 whereby

appellant/defendant averred that respondent/plaintiff told him about

the passing of the ex-parte decree are paras 5 and 6 and these paras

read as under:-

"5. That on 16.03.2015, the applicant/defendant came to know through Mr. Sanjay Chaudhary and his companies about the pendency of proceedings in Execution No.222/2014 in the court of District Judge, Gautambudh Nagar U.P., whereby the ld. Court has passed the order of attachment without hearing the application/defendant's.

6. That in this way the applicant/defendant came to know about the aforesaid execution proceedings and about the passing of Ex-parte decree dated 25.09.2013 passed by the court of Shri Sunil Kumar Aggarwa ADJ, Central, Tis Hazari Court, Delhi, whereby the Ld. Court was pleased to pass the order decreeing the suit of the plaintiff or a sum of Rs.10,52,365/- with 14% interest p.a."

5. Trial court has dismissed the application under Order IX

Rule 13 CPC both on the ground of limitation as also considering the

issue on merits as regards the service upon the appellant/defendant and

his knowledge of the ex-parte judgment and decree against him.

6. As regards the service of the appellant/defendant trial

court notes that three attempts were made to serve the

appellant/defendant. In the first attempt it was stated in the report of

the postal officer that the guard did not allow the postman to go inside

the building where the office of the appellant/defendant is situated.

Appellant/defendant therefore was directed to be served afresh by

notice by post and on this occasion it was written in the postal report

that there was no such firm of the appellant/defendant at the stated

address. The trial court therefore found that the appellant/defendant is

deliberately avoiding service but yet it issued the court notice to the

appellant/defendant for the next date. The court notice was however

not received back and therefore, appellant/defendant was proceeded

ex-parte in the suit.

7.(i) It is relevant at this stage to refer to the provision of

second Proviso to Order IX Rule 13 CPC which was introduced by

Act 104 of 1976 w.e.f 1.2.1977. This provision was added because it

was found that though there may be some irregularity in service but

the defendant knew of the proceedings and yet chose not to appear,

and in such cases the ex-parte judgment and decree was not to be set

aside.

(ii) It is seen in the facts of this case that the trial court has drawn a

correct presumption against the appellant/defendant of avoiding

service. In any case, the appellant/defendant has been found after

passing of the ex-parte decree to have got inspected court record

through the Advocate Mr. Sanjay Chaudhary on 19.11.2013 but the

application under Order IX Rule 13 CPC was filed after 1 ½ years on

24.3.2015 without being accompanied by an application for

condonation of delay. It is also relevant to note that

appellant/defendant entered into a settlement with the

respondent/plaintiff on 8.12.2013 after the ex-parte decree was passed

on 25.9.2013, and pursuant to the settlement had issued various

cheques to the respondent/plaintiff towards payment. Though the

appellant/defendant has chosen to deny that it ever engaged the

Advocate Mr. Sanjay Chaudhary to inspect the court file or that

certain cheques were kept in trust with the respondent/plaintiff,

however, the trial court has rightly disbelieved this stand by observing

as under in paras 6 and 7 of the impugned judgment and which paras

read as under:-

"6. When the aforesaid fact was brought to the knowledge of the learned counsel for the applicant, he took instructions from the applicant in court itself. The applicant denies having engaged Shri Sanjay, Advocate

to inspect the suit record. A perusal of the inspection application reveals that nothing was mentioned therein as to how the applicant came to know about the matter. The conduct of the applicant in the matter does not appear to be bonafide and the reasons for the same are as under:

(a) After having come to know that a false Vakalatnama and application for inspection was filed in the matter on its behalf, the applicant did not initiate any proceedings with the Bar Council of India against it lawyer/advocate, whose registration number has been duly mentioned in the Vakalatnama;

(b) In the instant application, the applicant has taken a false stand that it came to know about the decree passed in the matter from the non- applicant himself. The applicant has termed the settlement between the parties, which took place on 08.12.2013 to be false, fabricated and forged. He has, however, not denied the cheques mentioned in the said compromise letter not to have been given by it to the non-applicant;

(c) The aforesaid cheques got dishonoured on account of "insufficient funds", which shows that the applicant had not got the payment of said cheques stopped with his banker and;

(d) The applicant has taken false stand about its address as well. The suit record reveals that legal notice was duly served upon the applicant on this very address. Today also, some documents have been filed by the applicant to show that the speed pos envelope had gone to the correct address.

7. Therefore, it is clearly evident that the applicant had the knowledge of the suit proceedings. He got the suit record inspected on 19.11.2013 and thereafter appears to have settled the matter with the non-applicant by executing 52 post-dated cheques. Therefore, on account of the foregoing reasons, I do not find any merits in the application in question, same stands dismissed."

8. I may note that on the respondent/plaintiff filing reply to

the application under Order IX Rule 13 CPC stating therein of a

settlement having been arrived at on 8.12.2013 after the ex-parte

judgment and decree was passed on 25.9.2013, the

appellant/defendant did not chose to file any rejoinder to the reply

filed by the respondent/plaintiff denying the factum of the settlement,

and therefore, the contents of the reply of averment of arriving at the

settlement on 8.12.2013 is deemed to be accepted by the

appellant/defendant. In any case, even before this Court there is no

dispute that cheques issued do bear the signatures of the

appellant/defendant.

9. In view of the above discussion, there is no merit in the

appeal. Dismissed.

NOVEMBER 06, 2017/ib                       VALMIKI J. MEHTA, J