M/S D.P. Agarwal Publications ... vs Ashish Kumar Pandey
2017 Latest Caselaw 5242 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No.377/2017

%                                                20th September, 2017

M/S D.P. AGARWAL PUBLICATIONS PVT. LTD. ..... Appellant
                   Through: Mr. Peeyoosh Kalra, Advocate
                            with    Ms.   Sona Babbar,
                            Advocate and Ms. Yashaswini
                            Bindal, Advocate.
                          versus

ASHISH KUMAR PANDEY                                     ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.34543/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

FAO No.377/2017 and C.M. No.34542/2017 (stay)

2. By this first appeal filed under Order XLIII (1)(d) of the

Code of Civil Procedure, 1908 (CPC), the appellant impugns the order

of the trial court dated 1.9.2017 by which trial court has dismissed the

application under Order IX Rule 13 CPC filed by the

appellant/defendant and has refused to set aside the ex-parte judgment

and decree dated 29.7.2016 passed in favour of the

respondent/plaintiff for a sum of Rs.19,90,652/- along with interest.

Money decree was passed in favour of the respondent/plaintiff on

account of the respondent/plaintiff doing office interior work for

premises of the appellant/defendant at A-147, Sector-63, Noida, U.P.

3. The case of the appellant/defendant in the application

under Order IX Rule 13 CPC was that the ex-parte decree dated

29.7.2016 ought to be set aside because the appellant/defendant

admittedly was not served at any of the two addresses of the

appellant/defendant company as stated in the memo of parties of the

suit. It was the case of the appellant/defendant that as per the report of

the process server, the appellant/defendant company is said to have

left the address and another report with respect to service was that the

premises were locked. It is argued that the appellant/defendant had no

knowledge of the suit and the appellant/defendant came to know about

the ex-parte judgment and decree only when it received a notice of

demand under Section 434(1)(a) of the Companies Act, 1956 dated

19.8.2016 and whereafter the said application under Order IX Rule 13

CPC was filed. It is pleaded that the notice under Section 434(1)(a) of

the Companies Act was served upon a different address of the Director

of the appellant/defendant company at Ananda Homestay, to A-118V,

Sector 35, near Sumitra Hospital, Noida, U.P. Accordingly, it was

pleaded that the service by publication which took place of the

appellant/defendant in the newspaper 'Statesman' as also the

affixation done at the address of the appellant/defendant as per the

memo of parties was not proper service and hence the ex-parte

judgment and decree be set aside.

4. The court below for dismissing the application under

Order IX Rule 13 CPC has given the following conclusions:-

(i) The two addresses of the appellant/defendant as per the memo

of parties in the suit were as House No.A-100, First Floor, Shivalik

Malviya Nagar, New Delhi-110017 and A-147, Sector-63, Noida, U.P.

and both these addresses continued to be of the appellant/defendant

because it is not as if the appellant/defendant is no longer the owner of

these two premises.

(ii) Respondent/plaintiff had no address of the appellant/defendant

company except with the two addresses given in the memo of parties,

and at which addresses two attempts were made in ordinary method to

serve the appellant/defendant which failed, and the

respondent/plaintiff had checked the website of the Registrar of

Companies before filing the application under Order V Rule 20 CPC,

and which Registrar of Companies website showed that registered

office of the appellant/defendant company continued to be at Shivalik,

Malviya Nagar, Delhi and that there was no change of this registered

office address of the appellant/defendant company.

(iii) The affixation done of the summons of the suit at the address of

the appellant/defendant was correct and the appellant/defendant

cannot be allowed to contest the service by affixation once admittedly

the appellant/defendant company continued to be at the address where

affixation was done.

(iv) No doubt the story put forth by the respondent/plaintiff of the

respondent/plaintiff having discovered residential address of the

Director Ms. Hemlata Agarwal of the appellant/defendant company at

the new address at which the legal notice dated 19.8.2016 was served

lacks credence, however, the court below notes that even the

resolution dated 1.9.2016 passed for filing of the application under

Order IX Rule 13 CPC in favour of Ms. Hemlata Agarwal contained

the address of the meeting of Board of Directors at A-100, First Floor,

Shivalik, Malviya Nagar, New Delhi and which was the address given

of the appellant/defendant company as per the memo of parties in the

suit.

5. I completely agree with the aforesaid conclusions and

reasoning of the court below inasmuch as it is not and could not be the

case of the appellant/defendant company that it had given any of its

addresses to the respondent/plaintiff except those two addresses at stated

in the memo of parties of the suit plaint. The only other way in which

the respondent/plaintiff could have traced out the address of the

appellant/defendant company was from the records of the Registrar of

Companies and which endeavor the respondent/plaintiff made and which

showed that the registered office of the appellant/defendant company

continued to be at Shivalik, Malviya Nagar. In fact, the court below has

also rightly referred to the fact that resolution dated 1.9.2016 in favour of

Ms. Hemlata Agarwal for filing the application under Order IX Rule 13

gives the address of the appellant/defendant company as of Shivalik,

Malviya Nagar. Merely because the address at Noida of the

appellant/defendant company is found to be locked, and it is stated that

same is because of an order of the Labour Commissioner, would not

mean that there would not even be a security guard at the gate and in any

case in order that this plea of the premises at Noida of the

appellant/defendant being closed by the order of the Labour

Commissioner, it was necessary that this plea be completely established

by filing the order of the Labour Commissioner, what was the extent of

the order, whether the order continues to operate or was stayed by the

higher court, whether in spite of the order of the Labour Commissioner

was the position that there was absolutely nobody at the premises in

Noida etc, and all of which pleadings and its substantiation on behalf of

the appellant/defendant are missing. This aspect has to be taken with the

fact that the appellant/defendant continued to be the owner of the suit

property at Shivalik, Malviya Nagar and at which address the endeavor

was made for service of the appellant/defendant company and ultimately

leading to service by publication and affixation at this address.

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

the appeal. Dismissed.

SEPTEMBER 20, 2017                           VALMIKI J. MEHTA, J
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