Narender Kumar Shah Proprietor ... vs M/S Sai Kripa Engineering Works
2017 Latest Caselaw 5550 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Decided on: 10th October, 2017

+                   CS(OS) 431/2010

       NARENDER KUMAR SHAH PROPRIETOR
       M/S JAY BHARAT STEEL                    ..... Plaintiff
                    Represented by: Mr. Roshan Santhalia, Adv.

                           versus

       M/S SAI KRIPA ENGINEERING WORKS
                                                               ..... Defendant
                           Represented by:     Mr. Kumar Dushyant Singh,
                                               Mr. Siddharth Dutta, Mr.
                                               Mukul Lather, Adv.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

IA 9363/2015 (u/O IX R 13 CPC by Defendant) and IA 9364/2015 (for delay of 65 days) in CS(OS) 431/2010.

1. By IA No.9363/2015, the defendants seek setting aside of the ex-parte decree dated 9th July, 2014 passed against the defendants for recovery of a sum of ₹27,70,389/- and by IA No. 9364/2015 condonation of delay of 65 days in filing IA No. 9363/2015.

2. Claim of the defendants in the two applications is that initially the suit was filed against defendant No.1 which is a partnership firm and no service was affected on defendant No.1. Later on the application of the plaintiff under Order I Rule 10 CPC defendant No.2 and 3 were impleaded, however

there was no proper service to the defendant No.2 and 3 and without following the due process of law it was directed that defendant No.2 and 3 be served through pasting and the learned Joint Registrar without finding whether the summons were duly executed on the defendants No.2 and 3 by substituted service, proceeded the defendants ex-parte wrongly. It is the case of the defendants that they came to know of the suit only on 20th January, 2015 when they received the summons in Execution Petition No. 486/2014. To buttress his arguments learned counsel for the defendant relies upon the decisions in (1997) 11 SCC 159 Yallawwa (Smt) Vs. Shantavva (Smt.); (2002) 5 SCC 377 Sushil Kumar Sabharwal Vs. Gurpreet Singh and Ors.; AIR 1967 All 170 Johri Lal Vs. Commissioner of Income Tax; AIR 1979 AP 180 Bondla Ramalingam Vs. Shiv Balasiddiah and AIR 1984 Cal 182 Teharoonchand Vs. Surajmull Nagarmull.

3. In respect of the application for condonation of delay of 65 days in filing the application under Order IX Rule 13 CPC, defendants claim that on coming to know about the decree, defendants engaged a counsel who filed his vakalatnama on 3rd February, 2015 in CS(OS) 431/2010 and Execution Petition No. 486/2014 and conducted the inspection of Court file on 4 th February, 2015. Since no documents were available, learned counsel for the defendants applied for the certified copies of the plaint, documents and annexures in CS(OS) 431/2010 vide diary No. 2118/2015 dated 5th February, 2015. Since the defendants had been proceeded ex-parte, certified copies of the documents were not supplied to the defendants. Thus the defendants filed an application under Section 151 CPC in CS(OS) 431/2010 being IA No. 4872/2015 on 27th February, 2015, however the said application was kept pending and till date the defendants have not received

the certified copies. Thus delay of 65 days was caused in filing the application under Order IX Rule 13 CPC.

4. Rebutting the arguments of learned counsel for the defendants, learned counsel for the plaintiff submits that initially defendant No.1 was impleaded as a party who was served on 6th September, 2011 whereafter a notice on the application under Order I Rule 10 CPC filed by the plaintiff was issued to the defendant Nos.2 and 3. Defendant Nos.2 and 3 refused to accept notice in the application. Consequently, the said application was allowed and defendants No.2 and 3 were impleaded as parties whereafter summons in the suit were sent to the defendants No.2 and 3 as well, however since they avoided accepting the summons, service was affected by affixation. Hence the defendants had full knowledge of the proceedings and they cannot now come around and seek setting aside of the ex-parte decree. Reliance is placed on the decision of the Division Bench of this Court in Sweety Gupta Vs. Neety Gupta & Ors FAO(OS) 108/2016 decided on 25th October, 2016. Referring to the decision of this Court in M/s. R.M. Enterprises Vs. Shri Radhey Sham Gupta FAO No.5/2014 decided on 6th January, 2014 it is also contended that on merits the defence of the defendant is that the goods supplied by the plaintiff were defective which is not a plausible defence and thus equity also demands that ex-parte decree be not set aside.

5. Plaintiff Narender Kumar Shah, Proprietor of M/s. Jay Bharat Steel filed the present suit i.e. CS(OS) 431/2010 impleading M/s. Sai Kripa Engineering Works as the sole defendant on 28th January, 2010. Three addresses of defendant i.e. M/s. Sai Kripa Engineering Works were given as

(i) D-35, Indira Enclave, Neb Sarai, (ii) I-93, Lajpat Nagar, Part-II, 2nd

Floor, Bikanerwala and (iii) I-21, 1st Floor, Part-III, Lajpat Nagar, all at New Delhi. Suit came up before this Court for the first time on 10th March, 2010 when summons in the suit were issued to the defendant on filing the process fee, registered cover and through courier returnable for 31 st May, 2010. On 31st May, 2010 this Court noted that as per office report, summons issued to the defendant were received back unserved. Thus directions were issued for fresh summons to the defendants on filing of the process fee/ RC and through approved courier and taking all steps by the plaintiff within a week returnable for 17th August, 2010. As process fee was not filed no summons could be issued to the defendants. On 6th October, 2010 when the matter came up before the learned Joint Registrar, learned counsel for the plaintiff submitted that he had filed an application vide diary No. 147621 seeking amendment of the memo of parties. However, the said application was not on record and thus the matter was renotified for 21 st January, 2011. On 21st January, 2011 again matter had to be adjourned to 6 th April, 2011 as the amended memo of parties had not been filed. On 6 th April, 2011, IA 5197/2011 under Order V Rule 20 CPC along with Section 151 CPC filed by the plaintiff seeking permission to file the amended memo of parties came up before the learned Joint Registrar and the learned Joint Registrar rejected the said application on the ground that the defendant in the suit was a partnership firm with two addresses and by amending the memo of parties the plaintiff could not introduce new defendants and a proper application in this regard had to be filed. Thus granting liberty the application under Order V Rule 20 CPC was dismissed.

6. Thereafter the plaintiff filed an application under Order I Rule 10 CPC for impleading the names of partners of the defendant firm being IA

11785/2011 on which notice was issued to the defendants i.e. defendants No.2 and 3 returnable for 3rd November, 2011. On 3rd November, 2011 the learned Joint Registrar allowed IA 11785/2011 under Order I Rule 10 CPC observing that the proposed defendants Sandeep Sehgal and Arun Manchanda refused to take notice of the application as per the endorsement dated 6th September, 2011 and the proposed defendants being necessary parties to the suit they were directed to be impleaded. Plaintiff was also directed to file amended memo of parties and summons in the suit were issued to the newly impleaded defendant No.2 and 3 on the plaintiff taking steps. On 22nd February, 2012 the learned Joint Registrar further noted that no summons were issued since the process fee was under objection and thus issued fresh summons. The order sheet dated 18th May, 2012 notes that defendant No.1 was served on 6th September, 2011 whereas to defendant No.2 and 3 service of notice was directed by way of affixation with fresh process fee to be paid. On 30th August, 2012 the learned Joint Registrar noted that defendant No.1 was served on 6 th September, 2011 and defendants No.2 and 3 were served by affixation on 7 th August, 2012. As none appeared for the defendants they were proceeded ex-parte vide order dated 7th March, 2013 whereafter the plaintiff led its ex-parte evidence and examined PW-1 Shri Narender Kumar Shah. On perusal of the evidence led by the plaintiff, this Court passed the judgment and decree dated 9th July, 2014.

7. The first contention of learned counsel for the defendants is that defendant No.1 was never served with the summons in the suit and thus the noting of the learned Joint Registrar in the order sheet dated 18 th May, 2012 and 30th August, 2012 that the defendant No.1 had been served on 6th

September, 2011 is erroneous which has led to the defendants being proceeded ex-parte. As noted earlier three addresses of the defendant No.1 were given which was impleaded as the sole defendant initially. Summons on defendant No.1 were sought to be served at D-35, Indira Enclave, Neb Sarai on 1st April, 2010 when it was informed by the security guard that the owners of the house were not present. Again on 24 th May, 2010 when the process server visited D-35, Indira Enclave, again the security guard informed that the owners were not present and when a request was made to speak on phone he refused. Efforts were made to serve the defendant No.1 at I-21, 1st Floor, Part-III, Lajpat Nagar on 1st April, 2010 where again the servant stated that the owners were not present in home and on 24 th May, 2010 when fresh efforts were made at I-21, 1st Floor, Part-III, Lajpat Nagar it was informed by a lady that the premises was not an office, however after speaking on phone she refused to accept the notice. Even at the third address given in the memo of parties for defendant No.1 i.e. I-93, Lajpat Nagar, Part-II, 2nd Floor, Bikanerwala, efforts was made on 1st April, 2010 when the premises was found locked and on 24 th May, 2010 where again the door was not opened and on the intercom it was informed that the owners of the defendant were not present at home. Further the person speaking on phone refused to accept summons. It is in the light of these refusal the learned Joint Registrar noted that service to defendant No.1 had been effected.

8. Notices were also issued to proposed defendants No.2 and 3 in IA 11785/2011 which were refused to be accepted. Learned counsel for the defendants vehemently submits that as per the noting the process server met the person who stated himself to be the partner of the concern M/s. Sai Kripa

Engineering Works, however refused to accept summons. It is contended that it is highly improbable that having accepted that the said person was a partner he would refuse to accept summons. Same report is in respect of defendant No.3 Sandeep Sehgal who also refused to accept the said summons. It may be noted that after allowing IA No. 11785/2011 on 3 rd November, 2011 the Court permitted the plaintiff to file amended memo of parties and issued summons in the suit to defendant No.2 and 3. Efforts were made to serve Arun Manchanda on 20th April, 2012 when on the first date the employee of Arun Manchanda stated that he had gone out and even on the subsequent date Arun Manchanda was stated to be out of the house. In respect of Sandeep Sehgal the house was found locked on 13 th April, 2012 and on 20th April, 2012 wife of defendant No.3 was present but she refused to accept the notice. As apparently there was no response on repeated visits on 7th August, 2012 summons were pasted on the residences of defendant No.2 and 3 on which the learned Joint Registrar held that summons have been served on defendant No.2 and 3 by affixation.

9. In Johri Lal (supra), Bondla Ramalingam (supra) and Teharoonchand (supra) relied upon by learned counsel for the defendant, it was held that when the Court is satisfied that defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons could not be served it could direct service by way of affixation. Learned counsel for the defendant has relied upon decision on Sushil Kumar Sabharwal (supra) wherein the Supreme Court held that before noting that the summons were duly served the Court is required to be satisfied in the sense of being proved "that the summons were properly and effectively served on the defendants and it is thereafter on its failure to appear in the Court that he can be

proceeded ex-parte".

10. As noted above various attempts were made; either the premises was found locked or the summons were refused to be accepted even when family members were present. Moreover, this Court finds that the three addresses of defendant No.1 were D-35, Indira Enclave, Neb Sarai; I-93, Lajpat Nagar, Part-II, 2nd Floor, Bikanerwala and I-21, 1st Floor, Part-III, Lajpat Nagar; the two latter addresses being of defendant No.2 and 3 respectively. In the Execution Petition defendants No.2 and 3 have admittedly been served on the two latter addresses i.e. I-93, Lajpat Nagar, Part-II, 2nd Floor, Bikanerwala and I-21, 1st Floor, Part-III, Lajpat Nagar. Further the address of the defendant No.1 firm is in all the invoices is D-35, Indira Enclave, Neb Sarai, Delhi which is not disputed. It is not the case of the defendants that wrong address of the defendants was given or that there was any collusion between the plaintiff and the process server.

11. Vide order dated 6th May, 2015 while issuing notice in the three applications this Court directed the process server who had filed the report, affixed the notices to file an affidavit in support of the service report which has been duly filed by Shri Dalel Singh, S/o Rulia Ram wherein he affirmed receiving three summons for affecting service upon M/s. Sai Kripa Engineering Works (defendant No.1) at the three different addresses vide entry No.3125 dated 27th March, 2010 and his visits on 1st April, 2010 and 24th May, 2010 at about afternoon at the three given addresses and his reports thereon.

12. Division Bench of this Court in Sweety Gupta (supra) dealing with the rebuttable presumption in terms of Section 114 (illustration f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 held:

"29. A combined reading of Section 114 (illustration f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897, would lead one to notice the drift towards presumption of the addressee having received the summons/letter sent by registered post. The aforesaid presumption, no doubt is rebuttable but only on evidence of "impeccable character".

30. The second proviso to Rule 13 of Order IX further clarifies that an ex parte decree cannot be set aside if the Court is convinced that defendant had the knowledge of the proceedings and he could have appeared and answered to the plaintiffs claim.

31. It is not the case of the appellant/defendant No.4 that wrong address was given in the summons or that there was any collusion between the plaintiff/respondent No.1 and the postman, process server and the Local Commissioner for non service of summons on the appellant. What has really been argued by the appellant all through is that one endorsement of a postman/process server cannot form the basis for deciding that she refused to accept the notice.

32. We find substance in the argument of the learned counsel for the plaintiff/respondent No.1 that the appellant had the knowledge about the proceedings as prior to the summons in the suit, notices were attempted to be served on the appellant/defendant No.4 in compliance of Order XXXIX Rule 3 CPC vide postal article dated 22.10.2008 which too was refused by the appellant/defendant No.4 (postal article is Exh.PW- 1/6)."

13. On the basis of facts noted it can safely be held that the defendants No.2 and 3 who are the sole partners of defendant No.1 were in knowledge of pendency of the suit and first avoided to accept notice in the application thereafter summons in the suit and in respect of defendant No.1 also efforts were made to serve at the three addresses but futile being premises either found locked or refused. Thus the plea taken by the defendants that they

were never served and hence the ex-parte decree be set aside cannot be accepted.

14. Having returned a finding that defendant Nos. 2 and 3, the sole partners of defendant No.1 were in the knowledge of the proceedings in the suit, the claim of the defendants that they came to know about the suit only on service of notice in the Execution Petition cannot be accepted. Hence the plea taken seeking condonation of delay being not bonafide cannot be accepted.

15. Applications are dismissed.

IA 9365/2015 (stay) Application is dismissed as infructuous.

Order dasti.

(MUKTA GUPTA) JUDGE OCTOBER 10, 2017 'ga'