Dimension Data India Private ... vs Vertex Customer Management India ...
2019 Latest Caselaw 3415 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 25th July, 2019
+                           CS(COMM) 1020/2016
    DIMENSION DATA INDIA PRIVATE LIMITED.... Plaintiff
                  Through: Mr. Dhruv Wahi & Ms. Aparna
                             Iyer, Advs.
                       Versus
    VERTEX CUSTOMER MANAGEMENT
    INDIA PRIVATE LIMITED                ..... Defendant
                  Through: Mr. Samrat Nigam, Mr. Amit
                             Punj Mr. Abhimanyu Walia,
                             Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.13101/2018 (of the defendant under Order IX Rule 13
CPC), IA No.13102/2018 (for stay of judgment dated 13th October,
2017) & IA No.13103/2018 (for condonation of 3 days delay in
applying therefor)

1.

The counsel for the applicant / defendant has been heard.

2. The plaintiff instituted this suit for recovery of Rs.1,91,73,992.07 paise from the applicant / defendant.

3. The suit first came up before this Court on 3rd August, 2016, when the same was entertained and summons thereof ordered to be issued.

4. The order dated 27th October, 2016 records that the summons sent to the applicant / defendant at the address given in the memo of parties had been received back unserved with the report that the applicant / defendant had left the said address. The order dated 10 th

July, 2017 records that the summons sent to the applicant / defendant at the first address were unserved and the summons sent to the applicant / defendant at the second address were returned unserved with the report that the applicant / defendant had left the address.

5. Not finding the Memo of Parties dated 4 th May, 2016 in Part-I file to be containing two addresses of the applicant / defendant, I have enquired from the counsel for the plaintiff.

6. The counsel for the plaintiff states that fresh address was furnished.

7. The Court Master has drawn attention to page 40 of Part-V file being the fresh / additional address of applicant / defendant filed by the counsel for the plaintiff. While the address given in the Memo of Parties dated 4th May, 2016 is only of 122, First Floor, Jaina Tower-I, Janakpuri District Centre, Janakpuri, Delhi-110058, the fresh addresses, of First India Place, Block-A, First Floor, Mehrauli, Gurgaon Road, Gurgaon, Haryana-122001 and Unitech Cyber Park, Tower-A, 5th Floor, Sector-39, Gurgaon, Haryana-122001 were given.

8. On 10th July, 2017, the plaintiff sought liberty to file appropriate application and filed IA No.8478/2017 for substituted service of the applicant / defendant by publication, and vide order dated 28 th July, 2017 such substituted service by publication was ordered.

9. The order dated 15th September, 2017 records that the applicant / defendant had been served through publication.

10. On 13th October, 2017, since none appeared for the applicant / defendant, the counsel for the plaintiff sought decree forthwith under Order VIII Rule 10 read with Order XIIIA of the CPC as applicable to

commercial suits and an ex parte decree for recovery of Rs.1,38,64,057.89 paise with interest at 9% per annum from the date of institution of the suit till realization, was passed.

11. The counsel for the applicant / defendant argues that, (i) the claim in suit was for recovery of payments due towards software supplied by the plaintiff to the applicant / defendant; (ii) the applicant / defendant had left the address of Janakpuri, Delhi in June, 2016 but the change in the records of the Registrar of Companies, of the address, was recorded only in May, 2018; (iii) in view of the reports aforesaid on the notice issued to the applicant / defendant, of the applicant / defendant having left the Janakpuri, Delhi address, it was to the knowledge of the plaintiff that the applicant / defendant was not at the Janakpuri, Delhi address; (iv) the representatives of the plaintiff were aware of the new address of the applicant / defendant, but still did not serve the applicant / defendant at the new address; (v) service by publication in newspaper only requires the applicant / defendant to remain present on the date stipulated and is not accompanied by delivery of any pleadings or documents or paper book of the case; (vi) thus the publication effected in the present case only called upon the applicant / defendant to appear in the Court and which the applicant / defendant did not; and (vii) in these circumstances, it was not open to the counsel for the plaintiff to, on 13th October, 2017 contend before this Court that the averments made in the plaint had not been rebutted and should be deemed to be admitted, inasmuch as neither the plaint nor the documents filed therewith had been served on the applicant /

defendant and in the absence of service, there was no question of deemed admission.

12. I have enquired from the counsel for the applicant / defendant, whether the applicant / defendant, along with the application, has filed any document to show that the applicant / defendant left the Janakpuri, Delhi address in June, 2016.

13. The counsel for the applicant / defendant states that there is only a bare averment of the applicant / defendant in this regard and no supporting document.

14. I have next enquired from the counsel for the applicant / defendant, in what capacity was the applicant / defendant occupying the Janakpuri, Delhi office.

15. The counsel for the applicant / defendant states that he has no instructions and "probably it was occupied as a tenant".

16. I have next enquired, when was the last commercial transaction of the applicant / defendant with the plaintiff.

17. The counsel for the applicant / defendant states that it was in 2013-14.

18. I have next enquired, whether there is any document to show that the plaintiff was aware of the new address of the defendant.

19. The counsel for the applicant / defendant again states that there is no document, and only a bare averment.

20. However, the counsel for the applicant / defendant agrees with the legal proposition that even if the applicant / defendant has left the last known address, unless the applicant / defendant proves the knowledge of the plaintiff of the new address, the plaintiff has no

option but to serve the applicant / defendant by publication or by other modes of substituted service.

21. The counsel for the applicant / defendant, on enquiry states that the applicant / defendant shifted from the Janakpuri, Delhi address in June, 2016, to A-110, Sector-4, Noida and that the applicant / defendant was in occupation of the First India Place, Block-A, First Floor, Mehrauli, Gurgaon Road, Gurgaon, Haryana-122001 and Unitech Cyber Park, Tower-A, 5th Floor, Sector-39, Gurgaon, Haryana-122001 addresses prior to occupying the Janakpuri, Delhi address.

22. I have also considered the need to put the application to trial on the plea of the applicant / defendant, of so shifting out from Janakpuri, Delhi address in June, 2016 and of the plaintiff being aware of the new address of the applicant / defendant, but am of the view that issues are to be framed and trial ordered only on material pleas of law and fact and not on every plea taken in the pleadings. It is inconceivable that the applicant defendant would not have in its custody and possession documents to show leaving of the Janakpuri, Delhi address. Similarly, it is inconceivable that had there been any transaction or conversations regarding transaction between the plaintiff and the defendant, during which the plaintiff would have become aware of the new address of the defendant, there would be no document with respect thereto. In today‟s day and time, commercial men speak through e-mails. It is not pleaded as to who on behalf of the applicant / defendant spoke on which date to who on behalf of the plaintiff. Merely taking the plea does not entitle the plea to be put to trial.

23. The application of the applicant / defendant for setting aside of the ex parte decree is thus not found to disclose any ground whatsoever.

24. As far as the illegality in procedure, argued with respect to the order dated 13th October, 2017 passing ex parte decree is concerned, the said argument cannot be smuggled in an application under Order IX Rule 13 of the CPC. If any challenge on merits is to be made to the order dated 13th October, 2017, the same has to be by way of an appeal and this Court exercising jurisdiction under Order IX Rule 13 of the CPC cannot find illegalities in the order and set aside the ex parte decree on the said grounds. Reference in this regard can be made to the dicta of the Supreme Court in Bhivchandra Shankar More Vs. Balu Gangaram More (2019) 6 SCC 387.

25. The counsel for the applicant / defendant at this stage states that the applicant / defendant, along with the application, has filed e-mails exchanged between the parties of 2013-14 and the plaintiff was aware of the e-mail addresses of the applicant / defendant, but did not seek service of the applicant / defendant by the mode of e-mail and through which the applicant / defendant would have been served. Attention in this regard is drawn to paragraph 26 of the application under Order IX Rule 13 of the CPC and to the documents, being the e-mails exchanged by parties. The said documents show the plaintiff to be communicating with the officials of the applicant / defendant primarily at the domain name vertex.com.uk, including [email protected], [email protected] and [email protected], as well as [email protected]

26. I have enquired from the counsel for the applicant / defendant, whether the said e-mail address of the applicant / defendant were valid, from the date of institution of the suit till the date of ex parte decree.

27. The counsel for the applicant / defendant states that he has no instructions and no such statement also has been made in the application.

28. I have enquired from the counsel for the plaintiff, why the plaintiff did not furnish the e-mail addresses of the applicant / defendant, or seek service of the applicant / defendant through e-mail.

29. The counsel for the plaintiff states that there was no direction of the Court in this respect.

30. I am unable to agree with the counsel for the plaintiff. It is for the plaintiff to furnish the address of the defendant available with the plaintiff, for service of the defendant.

31. In the present case, since the applicant / defendant was not being served at the physical address given, it was all the more necessary for the plaintiff to, instead of seeking substituted service by publication or by affixation, furnish the e-mail address of the defendant.

32. On the summons sent to the applicant / defendant at the address given being returned unserved with the report as aforesaid, vide order dated 27th October, 2016, the plaintiff was directed to file fresh address of the applicant / defendant. The plaintiff, at least at that stage, should have furnished the e-mail address available with it. Rather, a perusal of IA No.8478/2017 filed by the plaintiff for

substituted service of the applicant / defendant, shows the plaintiff to have stated that no other address of the applicant / defendant was available with the plaintiff, which is evidently false.

33. The counsel for the plaintiff, faced therewith states that the e- mails had been filed by the plaintiff along with its documents before the Court and were available to the Court and it was for the Court to direct service through e-mail.

34. It is quite obvious that the plaintiff, who has the duty under the CPC to furnish address of the defendant for service, is attempting to pass off its own fault on to the Court. The Court is not required to minutely go through each and every paper filed by the plaintiff, especially at the stage of service of the defendant, and notwithstanding the concealment practised by the plaintiff of address of the defendant, fish out other addresses available on record.

35. The Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules, 2010 with effect from 9th February, 2011 provide for a party to a suit to provide electronic mail address of the other party for service of the other party.

36. The counsel for the plaintiff however keeps on repeating, that there was no direction for the plaintiff to furnish e-mail address.

37. The said argument is found to be contrary to the Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules, 2010 providing for the plaintiff to furnish the address. Once a plaintiff realizes, that at the address given, the defendant is not to be found, the plaintiff is required to give all other

addresses available with it and the plaintiff in the present case is found to have avoided giving the correct address.

38. The counsel for the applicant / defendant states that in the interregnum, instructions have been obtained and the domain @vertexgroup.co.uk was functional till May, 2018.

39. The applications are thus to be allowed, only for the reason of the concealment of the e-mail addresses practised by the plaintiff in pursuing this suit.

40. The counsel for the plaintiff has next contended that no case for condonation of delay in applying for setting aside of the ex parte decree is made out. It is argued that the applicant / defendant claims to have learnt of the ex parte decree on 27th July, 2018 on receipt of notice of execution filed by the plaintiff, but applied for certified copies only on 18th August, 2018 and the application under Order IX Rule 13 is dated 18th September, 2018. It is further argued that there is no explanation for undue delay and each and every days delay has not been explained. It is yet further argued that while the delay is of 54 days, in the application, the delay is stated to be of three days only.

41. I have enquired from the counsel for the plaintiff, when was the application under Order IX Rule 13 of the CPC filed.

42. The counsel for the plaintiff states, that he has not inspected, perhaps again suggesting, that it is not his responsibility and being a matter of record, the Court should have seen the same, just like the Court should have seen the e-mail on record and directed service though e-mail.

43. As far as these arguments are concerned, once it is found that the plaintiff has practised concealment in the matter of furnishing the particulars of the defendant available with the plaintiff for service, and which has resulted in the plaintiff having a walkover in the matter, such arguments do not come in the way of setting aside of the ex parte decree.

44. However, for the delay caused by the applicant / defendant, the applicant / defendant is burdened with costs of Rs.50,000/-.

45. Subject to the applicant / defendant paying costs of Rs.50,000/- to the counsel for plaintiff on or before 30th August, 2019, the application for condonation of delay in applying under Order IX Rule 13 of the CPC is allowed and the ex parte decree dated 13th October, 2017 is set aside.

46. The applications are thus allowed and disposed of. CS(COMM) No.1020/2016

47. Written statement be filed within 30 days. It is made clear that considering that the disposal of the suit has already been considerably delayed, no further opportunity shall be given.

48. Replication if any within further 30 days thereafter.

49. List for framing of issues if any on 10th December, 2019.

RAJIV SAHAI ENDLAW, J.

JULY 25, 2019 „gsr‟..

(Corrected & released on 16th August, 2019)