M/S Bio-Age Equipment & Services And ... vs M/S A2Z Infrastructure Ltd. And Another
2024 Latest Caselaw 7147 P&H

Punjab-Haryana High Court

M/S Bio-Age Equipment & Services And ... vs M/S A2Z Infrastructure Ltd. And Another on 4 April, 2024

                                  Neutral Citation No:=2024:PHHC:046466




                                                          2024:PHHC:046466

CR-3740-2018 (O&M)                                              - 1-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH.

104                                CR-3740-2018 (O&M)
                                   Date of decision: 04.04.2024

M/s Bio-Age Equipment & Services and another                ...Petitioners.

                          Versus

M/s A2Z Infrastructure Ltd. and another                     ....Respondents.

                           ***

CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
                ----

Present:    Mr. K.S. Rana, Advocatefor the petitioners.

            Mr. Kunal Dawar, Advocate and
            Mr. Vipul Sharma, Advocate for the respondents.
                  ****

Sukhvinder Kaur, J.

By way of present revision petition, the petitioners have

challenged order dated 14.05.2018 (Annexure P-8), passed by the trial

Court, vide which application under Order IX Rule 13 CPC for setting aside

judgment and decree dated 30.01.2016, was allowed and exparte judgment

and decree dated 30.01.2016 (Annexure P-3) was set aside.

2. The brief facts for adjudication of the present revision petition

are that petitioners/plaintiffs filed civil suit No.166 of 16.10.2015 titled as

'Bio-Age Equipment and another vs. A2Z Infrastructure Ltd. and another'

under Order VII Rules 1 and 2 CPC for recovery of Rs.12,21,840/-

(principle amount of Rs.9,00,000/- alongwith interest at the rate of 12% per

annum i.e. Rs.3,21,840/- for the period from 16.10.2012 to 10.10.2015) on

the basis of invoice No.46 dated 16.10.2012 alongwith future interest at the

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rate of 12% per annum from the date of suit till its realization, averring

therein that the plaintiff is engaged in the business of manufacturing and

selling of electronic goods for industrial use. The defendants purchased

electronic products manufactured by the plaintiff from time to time. Vide

purchase order dated 07.09.2012, the defendants ordered it amounting to

Rs.45,90,000/-, out of which Rs.9,00,000/- are still outstanding against the

defendants as per the statement of account. Notice of the suit was given to

the defendants for 07.12.2015 on filing of RC and ordinary summons were

also ordered to be issued. On 07.12.2015, the summons sent through RC to

defendants No.1 and 2 were received back with the report of 'refusal' and

none appeared on their behalf, so they were proceeded against exparte and

case was fixed for exparte evidence of the plaintiffs. Thereafter, suit of the

plaintiffs was exparte decreed on 30.01.2016.

3. The petitioners filed Execution Application No.123 of 2016 on

26.07.2016, in which notice was issued to the respondents on the same

addresses and they appeared on 07.03.2017. The respondents filed an

application under Order IX Rule 13 CPC for setting aside the exparte

judgment and decree dated 30.01.2016 alongwith an application for

condonation of delay on 05.04.2017. The trial Court vide impugned order

dated 14.05.2018 allowed both the above said applications and the

Execution Application filed by the petitioners was held to be infructuous. So

the petitioners have knocked the doors of this Court by way of filing the

present revision petition.

4. Learned counsel for the revision petitioner has contended that

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the respondents were served through registered post and total six summons

were received back by the trial Court, with the endorsement from the postal

department that 'respondents had refused to take the summons'. While

relying upon Order V Rule 9(5) CPC, he has contended that as it was a

proper service the trial Court has erred in concluding that the service was

not duly effected upon the respondents. While referring to the testimony of

DW-1 Madan Gopal Dass, he has further contended that said witness has

admitted in his cross-examination that the postal department had not made

any false report due to ill will or with bad intention against the respondents,

which makes it ample clear that the postal department in their ordinary

course of duty had made the above said endorsement on all the six

summons. He has vehemently contended that in fact the respondents knew

from the beginning about pendency of suit and were watching the court

proceedings and just before attachment of bank's account, they appeared

before the Executing Court and the only object of the respondents was to

delay the proceedings. But the trial Court has completely ignored the correct

provisions of law and real intention of the respondents. No evidence was led

by the respondents to challenge the authenticity of the endorsements made

by the postal department on the summons received by the Court and the

respondents had miserably failed to prove their case under Order IX Rule 13

CPC.

5. Per contra, it has been contended by learned counsel for the

respondents that the respondents were never served in the case and they

came to know about the exparte decree against them when summons in the

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Execution Application were received in their office on 09.02.2017.

Thereafter, without any further delay, they initially appeared in the said

execution case and thereafter filed an application under Order IX Rule 13

CPC for setting aside the exparte judgment and decree dated 30.01.2016.

6. In the present case, this Court has to examine if there was

proper service upon the respondents. Vide order dated 26.10.2015 passed

by learned trial Court, the respondents were ordered to be served through

RC and through ordinary summons for 07.12.2015. On 07.12.2015, the RC

was received with the report of refusal and as none appeared on behalf of

the respondents, the respondents were proceeded against exparte.

7. Order 5 Rule 17 CPC deals with procedure when defendant

refuses to accept the service or cannot be found. It specifically mandates

that the serving officer shall affix copy of summon on the outer door or

some other conspicuous part of the house in which the defendant ordinarily

resides and carries on business or personally works for gain and shall then

return the original to the court from which it was issued, with the report

endorsed thereon or annexed thereto stating that he has so affixed the copy,

the circumstances under which he did so and the name and address of the

person by whom the house was identified and in whose presence the copy

was affixed. As in the instant case, the aforesaid compliance has not been

made, so the trial Court was right in observing that it was not a proper

service in the eyes of law.

8. The counsel for respondents has also placed reliance upon the

judgment in M/s Paras Ram Milkhi Ram vs. Sudarshan Tea Pvt. Ltd.

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CR-3740-2018 (O&M)                                               - 5-

and another, 2022(2) R.C.R. (Civil) 562 and M/s Aar Kay Traders vs.

M/s Satish Electronics, 2008(56) R.C.R. (Civil) 840 and has contended

that as the respondents were living outside the territorial jurisdiction of the

Court where suit was instituted, they could not have been served by way of

registered post directly by the Court where suit was instituted. In the instant

case, when admittedly the respondents were residing outside the territorial

jurisdiction of the Court where the suit was instituted, that being so, service

sought to be effected upon them by way of registered post acknowledgment

due, directly by the Court where the suit was instituted, cannot be deemed to

be proper service and the procedure adopted by the trial Court was contrary

to the provisions of Order 5 Rules 9 and 21 CPC.

9. Thus, there being no illegality or infirmity in the impugned

order, no interference therewith is called for while exercising the revisional

jurisdiction. The present revision petition being bereft of any merits stands

dismissed.

10. All pending applications, if any, also stand disposed of

accordingly.

11. As civil suit No.166 titled 'Bio-Age Equipment and another vs.

A2Z Infrastructure Ltd. and another' pertains to the year 2015, so the trial

Court is directed to dispose of the said suit expeditiously as per law.

(SUKHVINDER KAUR) JUDGE

04.04.2024.

komal
               Whether speaking/ reasoned       :      Yes/ No
               Whether Reportable               :      Yes/ No


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