Delhi High Court
Durant Refrigeration Pvt. Ltd. vs Northern Radio & Refrigeration Co. (P) ... on 30 September, 1992
Equivalent citations: 48(1992)DLT680
JUDGMENT C.L. Chaudhry, J.
(1) This application has been filed on behalf of the defendant under order 37 Civil Procedure Code for setting aside the ex parte decree passed in the suit on 17.5.1990 against the defendants. It is alleged in the application that on 10.7.1991 the applicant came to know through a friend of the applicant that an ex parte money decree has been passed in favor of the plaintiff and against the defendant. The applicant engaged an advocate who inspected the record on behalf of the .defendants. It revealed that the suit had been decided ex parte on 17.5.1990 holding the substituted service by publication in the daily Newspaper 'National Herald' on 29.1.1990 to be sufficient. It is further alleged that neither the applicant nor any of the Directors or officers of the defendant company bad knowledge of the suit filed by the plaintiff. National Herald has no wide circulation in the city of Lucknow, and as such the applicant never came across the publication in the said Newspaper.
(2) It is further alleged that the applicant did not receive any notice in the aforesaid suit. Since the service had been effected only by publication, the ex parte decree is liable to be sat aside. It is also alleged that the suit is not based on a Bill of Exchange.
(3) The plaintiff was afforded opportunity to file reply to this application which they did. The plea raised on behalf of the plaintiff is that the application is not maintainable under the provisions of the Code of Civil Procedure as no leave was obtained by the defendant and no sufficient cause has been shown by the defendant for their being prevented from appearing in time and getting leave to defend. It is clear from the Court record that the applicant had the knowledge about the filing of the suit but they had deliberately, on one pretext or the other, been avoiding the service. The applicant were duly served by substituted mode. It was denied that National Herald had no wide publication in the City of Lucknow and that the applicants never came across the publication in the Newspaper.
(4) In order to appreciate the respective contentions of the parties, it is necessary to narrate certain facts which are relevant for the disposal of this application.
(5) The plaintiff filed a suit against the defendant for recovery of Rs. 2,94,260.00 under the provisions of Order 37 CPC. Several attempts were made to serve the defendants in the suit but the defendants remained unserved. The plaintiff moved an application (being I.A. No. 9106/1989) under Order 5 Rule 20 Civil Procedure Code with the prayer that the service on the defendants be effected in a substituted manner. The application was made on the allegations that the summons were issued by ordinary process as well as by registered A.D. post, a number of times, but neither the registered A.D. envelops containing the summons issued by this Court were received back undelivered nor the acknowledgement due cards had been received. It was further alleged that the defendants were keeping out of the way for the purpose of avoiding service and the summons could not be served in the ordinary way. The application came up for orders before the Deputy Registrar on 11.12.1989. On perusal of the previous reports as well as the contents of the application, the Deputy Registrar was satisfied that the defendants could not be served in the ordinary way. It was ordered that the service on the defendants be effected by affixation on the last known address of the defendants as well as on the notice board of this Court. Summons were also directed to be published in the daily 'National Herald'. In pursuance to the directions given by. the Deputy Registrar, summons were issued for affixation and also for the publication in the Newspaper. The notice was published in the 'National Herald' dated 29,1.1990. Despite service, by publication in the 'National Herald' of 29.1.1990, the defendants did not enter appearance. Accordingly, the suit of the plaintiff under order 37 Civil Procedure Code was decreed on 17.5.90 for an amount of Rs. 2.94.260.00 with interest @ 15% per annum besides costs.
(6) I have heard the learned Counsel for the parties and have bestowed my thoughtful consideration to the matter involved.
(7) It was contended by Mr. Aggarwal that there was no valid service on the defendants. The notice issued for affixation at the last known address were not actually affixed there and there was no compliance of the directions of the Court. It was next contended that the rules provide that one copy of the newspaper was required to be sent to the defendants under certificate of posting. This was also not done.
(8) On the other hand the contention of Mr. Arora is that summons were duly served upon the defendants by substituted mode.
(9) I have gone through the record of the case very carefully. Notices were issued by the office to be affixed on the notice Board of this Court as well as at the last known address of the defendants. From the report of the Process Server it appears that the notice was affixed on the notice board of the High Court. So far as the notice issued to be affixed at the last known address was concerned, it w,as sent to the District Judge; Lucknow for compliance. In the covering letter which was sent to the District Judge, Lucknow, it was mentioned "notice be affixed at the last known address". I have perused the report of the Process Server, wherein it is mentioned that the addressee was out of station and the service could not be effected. There is no report that the notice was affixed at the last known address of the defendant. The- original notices have been received back. The substituted service was not effected in the manner directed by the-Court. There was no due service of summons..
(10) I have also perused the copy of the letter dated 9.1.1990 from the Registrar of this Court to the Manager, National Herald. It is stated in the letter "send one copy of the newspaper containing- the printed notice indicated in the Red ink to the addressee mentioned in the notice under postal certificate". This was done in compliance with Rule 8 of Chapter 7-B, Volume Iv, which reads as under:- "IN SENDING a judicial notice for publication in a newspaper, the Court should, in the covering letter, require the Manager of the newspaper to send, under postal certificate, the copy of the paper containing the notice to the party for whose perusal it is intended at the address given in the notice, marking the notice in question with red ink, he should also be required, as proof of compliance with this order, to attach the postal certificate to his bill when submitting the latter to the Court for payment."
(11) So, the rule provides that the copy of the newspaper is required to be sent to the party concerned under certificate of posting by the office of the Paper. I have gone through the record carefully. There is nothing to indicate that the copy of the newspaper containing the printed notice indicated in red ink was sent to the party concerned under certificate of posting by the office of the Newspaper. There was no compliance of the rule. It is fatal. I hold that there was no due service by means of publication in the newspaper.
(12) Order 37 Rule 4 of the Code of Civil Procedure reads as follows: Power to set aside decree. After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.
(13) In view of my findings, it follows that the defendant was not duly served with the summons in the suit by means of a substituted service. Under Order 37 Rule 4 the Court can set aside the decree if there are special circumstances. In my opinion, non service of summons falls within the ambit of the expression "Special circumstances." While exercising my power under Order 37 Rule 4, I find it a fit case for setting aside the ex-parte decree dated 17th May, 1990. .
(14) In the result, I allow this application and set aside the decree passed by this Court on 17th May, 1990. The defendants are given leave to enter appearance. Parties are left to bear their own costs.