Vikas Kumar vs Purshotam Verma
2018 Latest Caselaw 2437 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 322/2018

%                                                   18th April, 2018

VIKAS KUMAR                                          ..... Appellant
                          Through:       Mr. G.D.Sharma, Advocate.
                          versus

PURSHOTAM VERMA                                     ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.15023/2018 (Exemption)

Exemption allowed subject to just exceptions

CM stands disposed of.

RFA No. 322/2018 & CM No. 15022/2018 (stay)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit,

impugning the order of the Trial Court dated 24.8.2017, by which the

trial court has decreed the Order XXXVII CPC suit filed by the

respondent/plaintiff, on account of non-filing of the application for

leave to defend. It is not disputed on behalf of the appellant/defendant

that no application for leave to defend was filed.

2. The case of the appellant/defendant is that summons for

judgment which were issued to the appellant/defendant have not been

received by the wife of the appellant/defendant Smt. Gita as stated in

the summons issued by the Court as also on the AD card of the

registered cover in which summons were sent.

3. This Court notes that the appellant/defendant had already

filed an application under Order XXXVII Rule 4 CPC after decree of

the suit in terms of the impugned order dated 24.8.2017, and this

application under Order XXXVII Rule 4 CPC was dismissed by the

trial court in terms of its order dated 27.1.2018 observing that

admittedly the name of the wife of the appellant/defendant is Smt.

Gita and the signatures of the person who received the summons of the

Court as also the registered cover containing the AD card is by one

Smt. Gita, with the fact that address as given in the summons and

Registered AD post is admittedly the address of the

appellant/defendant. This order dated 27.1.2018 reads as under:-

"27.01.2018

Present: Sh. G.D. Sharma, Ld. Counsel for applicant.

I heard arguments on the application u/o 37 rule 4 CPC. As per rule 4 of order 37 CPC, the court may, under special circumstances "set aside the decree and if necessary stay or set aside the execution and may give leave to defend to appear to the summons and to defend the suit if it seems reasonable to the court to do so and on such terms as the court thinks fit". Therefore, it is clear that this provision can only be invoked under special circumstances.

It is submitted by Ld Counsel for applicant/defendant that the defendant has not received any summons for judgment as prescribed under special rule 4 of rule 3 of order 37 CPC till November, 2017.

I perused the record. As per record, summons for judgment was sent to the defendant on his address i.e 9371, Goshala Road, Dhobiwali Gali, Karol Bagh, New Delhi-5 and his wife met at the given address and on enquiry the name of the wife of the defendant was revealed as Gita and she received the summons for judgment on 17.07.2017. It is not in dispute that the name of the wife of the defendant is Gita. AD card also received back with the signatures of Gita. Therefore, I am of the view that the summons for judgment was received by Gita, Wife of the defendant on 17.07.2017. The defendant did not file leave to defend application within time and the decree under order 37 CPC was passed on 24.08.2017 even after more than one month. It is clear that the defendant did not appear and file leave to defend application within time. I am of the view that there is no circumstances what to say of special circumstances, on the basis of which provision of rule 4 of order 37 CPC may be invoked. Therefore, the application is dismissed.

File be consigned to record room."

4. Learned counsel for the appellant/defendant argued that

the summons for judgment are not served upon the

appellant/defendant firstly because the address which is given by the

process server in his report does not contain an expression „Karol

Bagh New Delhi" at the end of the expressions "Vikas Kumar son of

Sh. Joginder Singh, 9371, Gaushala Road, Dhobi Wali Gali", and

secondly because of the fact that whereas on the summons the

signatures of Smt. Gita appear in Hindi but on the AD card the

signatures are in English. It is also argued that there is no

identification of Smt. Geeta by any witness.

5. Accordingly, it is argued that since appellant/defendant

was not served with the summons of judgment, the Order XXXVII

CPC suit could not be decreed for not filing the leave to defend

application.

6. I may note that the subject suit is filed on the basis of

dishonoured cheques of the total amount of Rs.5 lacs. The subject

cheques were given by the respondent/plaintiff as advance payment

amount to the appellant/defendant for purchasing the property of the

appellant/defendant by the respondent/plaintiff, but since the

appellant/defendant failed to complete the transaction, hence on

asking for returning back of the amount, four cheques totaling to Rs.5

lacs were issued by the appellant/defendant in favour of the

respondent/plaintiff, and which cheques on presentation were

dishonoured.

7. The first argument urged on behalf of the

appellant/defendant that the complete address is not mentioned

because of the absence of the expression "Karol Bagh New Delhi" on

the summons is a misconceived argument because the address not

containing the expression "Karol Bagh New Delhi" is not on the

summons but on the report of the process server. On the summons the

complete address is given and which is seen from running Page 75 of

this appeal paper book, and after which document at Page 75 the

report of the process server is there at Page 76 which does not mention

the expression "Karol Bagh". Therefore, appellant/defendant cannot

argue that summons were not issued correctly and at the complete

address.

8. The argument of the learned counsel for the

appellant/defendant that service by AD card should be disbelieved

because in the summons of the Court the signatures are in Hindi

whereas in AD card the signatures are in English, but this argument

overlooks the fact that it is not the case of the appellant/defendant that

his wife only signs in Hindi and not in English also, with the fact that

admittedly the address which is on the registered cover was the correct

and complete address of the appellant/defendant. This Court refuses

to accept the tactics of the appellant/defendant in an Order XXXVII

suit for recovery of money in trying to avoid making of the due

payment under the dishonored cheques on flimsy grounds of

signatures of the wife of the appellant/defendant appearing in Hindi on

the summons and English on the AD card.

9. The argument of appellant/defendant that signatures on

the summons of his wife Smt. Gita had to be identified by a witness is

an argument without substance as there is no provision of requiring

identification/attestation of signatures of a person who receives

summons from the Court.

10. There is no merit in the appeal. Dismissed.

APRIL 18, 2018/ib                           VALMIKI J. MEHTA, J