Delhi District Court
Rooplal Jindal vs C.P.Pandey (Alias Netaji) on 15 April, 2008
IN THE COURT OF DR.SUDHIR KUMAR JAIN, ADDITIONAL DISTRICT JUDGE: DELHI.
M.54/06
Rooplal Jindal,
Proprietor Deepak Handloom Industries,
BH-7, Shalimar Bagh Poorvi,
Delhi-110052. ... Plaintiff
Versus
C.P.Pandey (alias Netaji)
Proprietor, M.D.Textiles,
397 Ramchanderlalji Bldg.,
Sheikh Menon Street,
Bombay-400002.
Also at
Shiv Sena Nagar,
Opp.TB Hospital,
Shivdi, Dadar,
Bombay.
Also at
C/o Ram Naresh M Pandey,
5, Vartak Tower Annex,
Nalasopara (E), Dist.Thane - 401202
Also at
C/o Babbanpat Pandey,
Village & P.O.Mohan Goopar (Nawabganj),
Dist.-Gonda, U.P.
Also at
C/o Nice Furnishings,
10,Chander Mukhi,
Vishal Nagar, Vasai (W)
Dist.Thane - 401202. .. Defendant
ORDER
This order shall decide an application u/O IX Rule 13 CPC r/w Section 151 CPC dated 07.08.2006 filed by the Judgment Debtor C.P.Pandey against the Decree Holder Roop Lal Jindal for setting aside exparte decree dated 30.03.1996.
2. Briefly stated the facts are that the decree holder/plaintiff has filed a suit for recovery of Rs.2,87,686.19p by pleading that the decree holder/plaintiff had supplied the handloom goods to the defendant vide bills as mentioned in para 4 of the plaint but the judgment debtor/defendant has not made the payment of entire sale consideration; the decree holder/plaintiff has given as many as five addresses of the judgment debtor/defendant in the array of the parties which are as under:--
C.P.Pandey (alias Netaji) Proprietor, M.D.Textiles, 397 Ramchanderlalji Bldg., Sheikh Menon Street, Bombay-400002.
Also at Shiv Sena Nagar, Opp.TB Hospital, Shivdi, Dadar, Bombay.
Also at C/o Ram Naresh M Pandey, 6, Vartak Tower Annex, Nalasopara (E), Dist.Thane - 401202 Also at C/o Babbanpat Pandey, Village & P.O.Mohan Goopar (Nawabganj), Dist.-Gonda, U.P. Also at C/o Nice Furnishings, 11,Chander Mukhi, Vishal Nagar, Vasai (W) Dist.Thane - 401202.
Summons were ordered to be issued for various dates against the defendant on the addresses mentioned in the memo of parties. The judgment debtor/defendant was stated to be served at address i.e.C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202. It was observed by the court vide order dated 16.02.1996 that the judgment debtor/defendant despite service did not appear and was proceeded exparte vide order dated 16.02.1996. The Predecessor of this court vide judgment and decree dated 30.03.1996 has decreed the suit in favour of the decree holder/plaintiff in the sum of Rs.1,37,226.49p alongwith interest @ 18% per annum on the principal amount alongwith costs.
3. The judgment debtor/defendant in the application u/O IX Rule 13 CPC which is under disposal has stated that the decree holder/plaintiff has filed a frivolous suit for recovery on the basis of fabricated bills and has given the wrong addresses for service of summons; the decree holder/plaintiff by mis-representation of the fact got the suit decreed from the court of Sh.S.S.Bal, the then ADJ vide judgment and decree dated 30.03.1996; the judgment debtor/defendant came to know about the passing of the judgment and decree dated 30.03.1996 in the court of Sh.Rajesh Kumar Goel, M.M., Delhi in criminal proceedings which are pending against the judgment debtor/defendant; the judgment debtor/defendant came to know of the passing of the exparte decree on 19.07.2006 and thereafter filed the present application for setting aside the exparte judgment and decree dated 30.03.1996 by alleging that the judgment debtor/defendant has no link or connection whatsoever with the Nice Furnishings and he has never known any Vijay Shankar of M/s.Nice Furnishings as such judgment debtor/defendant was not served at all. The judgment debtor/defendant has prayed for setting aside exparte decree dated 30.03.1996 and request the permission to contest the suit.
4. The application is contested by the decree holder/plaintiff by pleading that the application is an abuse of the process of law; judgment debtor/defendant has not given his address in the affidavit annexed alongwith application under disposal; judgment debtor/defendant was duly served with the summons on 26.10.1995 through one Vijay Shankar and again on 16.02.1996; judgment debtor/defendant was having the knowledge of the passing of the judgment and decree dated 30.03.1996; the office of Sheriff of Mumbai has filed an affidavit of Mohan Vishnu, bailiff in the execution application no.505/2000 wherein stated that the summons were duly served upon the judgment debtor/defendant at the addresses as given at serial nos.1 and 2 in Annexure B; the judgment debtor/defendant had the knowledge of the passing of the decree. The decree holder/plaintiff has prayed for dismissal of application under disposal.
5. Sh.K.D.Kaushal, Advocate for the judgment debtor/defendant and Sh.S.K.Chaudhary, Advocate for the decree holder/plaintiff heard. Record perused.
6. Order IX of the Code of Civil Procedure, 1908 deals with appearance of parties and consequence of non-appearance. Order IX Rule 13 CPC deals with the procedure for setting aside the exparte order against the defendant. It provides that in any case in which a decree is passed against a defendant, he may apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing then the court shall make an order setting aside the decree against him and shall appoint a day for proceeding with the suit. Rule 13 CPC as such provides that an exparte decree against the defendant may be set aside if the defendant has satisfied the court that the summons were not duly served or he was prevented from any sufficient cause from appearing when the suit was called on for hearing.
7. In the present case, the judgment debtor/defendant has alleged that he was not served with the summons of the case personally. Order V Rule 9 CPC deals with the delivery of summons by court. It provides that where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to except the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates.
8. In the instant case, the perusal of record reveals that the decree holder/plaintiff has mentioned five addresses of the judgment debtor/defendant which are mentioned hereinabove. The perusal of order sheet dated 16.02.1996 reveals that the Predecessor of this court has observed that the defendant has been served by one Vijay Shankar but not appeared as such judgment debtor/defendant was proceeded exparte. The processes were ordered to be issued against the judgment debtor/defendant for 26.10.1995, 18.12.1995, 10.01.1996 and 16.02.1996. The summons were issued on all the addresses as given in the memo of parties. The judgment debtor/defendant was stated to be served at address i.e. C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202. The perusal of record further reveals that the judgment debtor/defendant was stated to be served through one Vijay Shankar with summons through registered post for 26.10.1995 on the address C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202. However, on 30.10.1995, the judgment debtor/defendant was ordered to be served for 18.12.1995. The judgment debtor/defendant was not served on 18.12.1995 and again summons were ordered to be issued for 16.02.1996. On 16.02.1996, the judgment debtor/defendant was stated to be served at address i.e. C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202. This service was accepted by the court. The court has also relied upon the A.D.on which the judgment debtor/defendant was stated to be served through one Vijay Shankar. The court has observed that despite service none has appeared on behalf of the defendant. Hence, the defendant was proceeded exparte.
9. The perusal of record further reveals that again the judgment debtor/defendant was served at address i.e. C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202 with the summons issued for 16.02.1996 through registered post. However, the name of the person who allegedly received the summons through registered post has not been mentioned but the Predecessor of this court has accepted the service and accordingly pleased to proceed exparte against the defendant. The judgment debtor/defendant in the application under disposal has stated that he has no concern with Nice Furnishings and he also does not know Vijay Shankar. However, the judgment debtor/defendant has not stated that the reports on both occasions on the summons sent through registered post at address of Nice Furnishings has been manipulated by the decree holder/plaintiff or the process server has given a false report. The decree holder/plaintiff has got transferred the decree to the court situated at District Thane. The decree holder/plaintiff in the execution proceedings has also mentioned the address Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202 as one of the address of the judgment debtor/defendant. There is no reason to believe that the decree holder/plaintiff has given a wrong address with a view to obtain exparte decree against the judgment debtor/defendant. The summons through registered post issued for 30.10.1995 and 16.02.1996 were delivered by the postman who is a public officer in discharge of his duties. There is no reason to disbelieve the reports on the registered covers issued for 16.02.1996 and 30.10.1995 particularly when the judgment debtor/defendant has not made any allegation of bias against the postman. There was every occasion for this court to accept the service on the summons. After considering all facts, I am of the opinion that the judgment debtor/defendant was served with the summons of the case at address C/o Nice Furnishings, 10, Chander Mukhi, Vishal Nagar, Vasai (W), District Thane - 401202.
10. The application also needs consideration from the point of limitation. The Article 123 of the Schedule attached with the Limitation Act, 1963 prescribed period of 30 days for filing an application for setting aside a decree passed exparte from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The judgment debtor/defendant has stated that he came to know about the passing of the exparte decree on 19.07.2006. The said plea of judgment debtor/defendant does not inspire any confidence particularly when there is no evidence on record available which can suggest that the case file was inspected on 19.07.2006 by Sh.Summit Kaushal, one of the counsel for the judgment debtor/defendant. The decree dated 30.03.1996 was got transferred to the court at Thane. The decree holder/plaintiff has filed an application u/O XXI Rule 22 CPC before the High Court of judicature at Bombay, Ordinary Original Civil Jurisdiction and in that proceeding affidavit of one Mohan Vishnu, bailiff was filed in execution application no.505/2000 wherein he stated that the summons were sent to the judgment debtor/defendant at four addresses but the office of Sheriff has received the acknowledgments in respect of addresses i.e.bearing no.T.B.Hospital, Shivdi, Dadar, Bombay and Villa & PO: Mohan, Goopar (Nawabganj) Distt.Gonda, U.P. and the said service was accepted by the High Court of judicature at Bombay in Notice no.335/2001 in suit no.122/1995. From this, it is apparent that the judgment debtor/defendant was having the knowledge of the passing of the exparte decree. The present application is not filed within thirty days as per Article 123 of the Schedule attached with the Limitation Act, 1963, as such it is barred by limitation. It was held in the case of Mrs.Maria Singh V Narender Singh and Others, II (1983) D.M.C. 408 that if the judgment debtor/defendant is having knowledge of the decree and did not take steps to get it set aside within the prescribed time the Court would not be justified in setting it aside on sensational grounds. It is apparent from the application filed before the High Court of judicature at Bombay that the judgment debtor/defendant was having the knowledge of the passing of the exparte decree dated 30.03.1996. The application is also time barred. The judgment debtor/defendant has also failed to establish that he has not been served with the summons of the case. There is no merit in the application. Hence, dismissed with cost of Rs.2,000/-.
Announced in the open court (Dr.Sudhir Kumar Jain) Dated: 15.04.2008 Additional District Judge, Delhi M.54/06 15.04.2008 Present: None.
Vide separate order, the application u/O IX Rule 13 CPC dated 07.08.2006 is dismissed with cost of Rs.2,000/-. File be consigned to the record room.
(Dr.Sudhir Kumar Jain) Additional District Judge, Delhi