Gujarat High Court
Rajeshkumar Dolia vs National Builder Infrastructure Pvt ... on 23 June, 2025
NEUTRAL CITATION
C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10023 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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RAJESHKUMAR DOLIA & ANR.
Versus
NATIONAL BUILDER INFRASTRUCTURE PVT LTD
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Appearance:
MR.ADITYA J PANDYA(6991) for the Petitioner(s) No. 1,2
MR HARSHAD J SHAH(752) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Harshad J. Shah waives service of rule on behalf of respondent. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
2. Heard learned advocate Mr.Aditya J. Pandya appearing for the petitioners and Mr.Arpit Kapadia for learned advocate Mr.Harshad J. Shah appearing on behalf of the respondent. Page 1 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025
NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined
3. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
"(A) YOUR LORDSHIP be pleased to issue writ of certiorari or any other writ, order or direction in the nature of certiorari and be pleased to quash and set aside the order and judgment dated 31.03.2018 passed below exhibit 1 by the Id. 8th Addl. Senior Civil Judge & A.C.J. Magistrate, Vadodara in Civil Miscellaneous Application (Fari Fayle) No. 50 of 2016.
(B) YOUR LORDSHIP be pleased to allow the prayers of Civil Miscellaneous Application No.50 of 2016 and be pleased to set aside the ex-parte judgment and decree dated 19.02.2016 passed in the Special Summary Suit No. 124 of 2014 by the Id. 12th Addl.
Senior Civil Judge and Addl. Chief Judicial Magistrate, Vadodara be pleased to restore the Summary Suit No. 124 of 2014 to file. (C) During the pendency and till final disposal of this petition, YOUR LORDSHIP be pleased to stay the execution and implementation of judgment and decree dated 19.02.2016 passed in the Special Summary Suit No. 124 of 2014 by the Id. 12th Addl. Senior Civil Judge and Addl. Chief Judicial Magistrate, Vadodara. (D) YOUR LORDSHIPS be pleased to grant any other just and proper remedy in the interest of justice."
4. THE SHORT FACTS OF THE CASE 4.1. The petitioners herein are the original defendants, whereas the respondent herein is the original plaintiff who filed Summary Special Suit Number 124 of 2014, which was decreed ex parte against the petitioners herein thereby they are required to pay Rs. 63,57,465/ with 18% from date of suit till its realization to respondent - plaintiff. Thereafter, the petitioners herein preferred an application under Order 37, Page 2 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined Rule 4 of the Civil Procedure Code, 1908 (hereinafter referred to as the CPC) whereby, requested the Trial Court to recall/set aside the ex parte money decree. The cause for filing the impugned application was to the effect that the petitioners, though served and having appeared through a lawyer in the suit, were not served with a copy of the summons for judgment. The impugned application was opposed by the respondent herein.
4.2. After hearing the parties, the Trial Court, vide its judgment and order dated 31.03.2018, has rejected the application. This Court, vide its order dated 03/07/2018, only issued notice in the matter and, as such, the judgment and decree passed by the Trial Court on 19.02.2016 is neither stayed, nor any relief has been granted in favour of the petitioners.
4.3. It is also reported to this Court that the aforesaid judgment and decree has not been challenged by the petitioners before the Appellate Court by way of independent appeal. As such, petitioners are not ready to deposit part of Page 3 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined decreetal amount.
4.4. With these set of facts, the original defendants have questioned the impugned order passed by the Trial Court rejecting their application filed under Order 37 Rule 4 of the CPC.
5. SUBMISSION OF THE PETITIONERS - ORIGINAL DEFENDANTS 5.1. Learned advocate Mr. Aditya Pandya, appearing for the petitioners, would submit that the impugned order is ex facie erroneous, perverse, and arbitrary and requires to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India. 5.2. Learned advocate Mr. Pandya would further submit that despite drawing the attention of the Trial Court to the fact that the defendants were not served with the summons for judgment, still the impugned application was rejected by the Trial Court, whereby the Trial Court has committed a gross irregularity and illegality.
5.3. Learned advocate Mr. Pandya would further submit Page 4 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined that when it has been pointed out to the Trial Court that the principle of natural justice has been violated, inasmuch as it has not been proved on record that the defendants were served with a copy of the summons for judgment, the impugned application was required to be allowed without imposing any condition upon the defendants.
5.4. Learned advocate Mr. Pandya would further rely upon the orders passed by the Trial Court below Exhibits 10, 25, and 26 in the suit, on 16.04.2015, whereby it was contended that the Trial Court, before passing the judgment and decree, in fact, held that the defendants were not duly served. Nonetheless, an ex parte decree came to be passed. 5.5. Lastly, learned advocate Mr. Pandya would submit that, as such, the decree in question is ex facie illegal and is a nullity and is required to be quashed and set aside by the Trial Court, and the impugned application be allowed in the interest of justice.
5.6. To buttress his argument, learned advocate Mr. Pandya Page 5 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined would rely upon the decision in the case of Bai Bachiben Vlabhai vs. State of Gujarat reported in 1994 (2) GLH 549. 5.7. Making the above submissions, learned advocate Mr. Pandya would request this Court to allow the present application.
6. SUBMISSIONS OF THE RESPONDENT - ORIGINAL PLAINTIFF 6.1. Per contra, learned advocate Mr. Arpit Kapadia, appearing for the original plaintiff, would submit that there is no illegality or irregularity committed by the Trial Court while rejecting the impugned application and this Court, while exercising its power under Article 227 of the Constitution of India, should not interfere with the impugned order. 6.2. Learned advocate Mr. Kapadia would further submit that, as such, the defendants were duly served with the summons of the suit, whereby they have chosen to appear through their lawyer, then after disappeared from the suit proceedings and, having been served with summons for judgment upon both the defendants at their respective places Page 6 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined through registered post, defendant No.1 has not claimed such registered post whereas defendant No.2 is duly served. 6.3. Learned advocate Mr. Kapadia would submit that when defendant No.2, which is the company, is duly served and defendant No.1 its director, chosen not to appear and defend the summary suit, no fault can be found with the judgment and decree albeit, passed ex parte against them. 6.4. Learned advocate Mr. Kapadia would further submit that as per the order dated 16.04.2015 passed below Exhibit 25, there is a clear observation made by the Trial Court that defendant No.2 is already served with the summons for judgment, which was not challenged by the petitioners; rather, they made a false statement in their application, jointly filed, that none of the defendants had received the summons for judgment and therefore, not entitled to claim any equitable relief as prayed for in the impugned application. 6.5. Learned advocate Mr. Kapadia would further submit that as per the settled legal position of law, while filing the Page 7 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined impugned application under Order 37 Rule 4 of the CPC, the defendants have to make out special circumstances and not sufficient cause for not appearing in the suit. It is submitted that on a plain reading of the impugned application, it would not make out any such special circumstances by the defendants and, inasmuch as no legal defense that is now raised in the present petition was raised before the Trial Court, either in the impugned application or during the course of argument, then the defendants are not entitled to raise such an issue before this Court in a writ application filed under Article 227 of the Constitution of India.
6.6. To buttress his argument, learned advocate Mr. Kapadia would rely upon the decision in the case of Rajni Kumar vs. Suresh Kumar Malhotra and another reported in 2003 (5) SCC 315.
6.7. Making the above submissions, learned advocate Mr. Kapadia would request this Court to reject the present application.
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7. POINT FOR DETERMINATION 7.1. The short controversy involved in the matter for consideration is as to whether the impugned order in the present application suffers from any illegality, irregularity, and/ or any perversity on the part of the Trial Court while rejecting the impugned application filed by the petitioners under Order 37 Rule 4 of the CPC or not?.
8. ANALYSIS
9. At the outset, it remains undisputed that the summons of the suit was served upon the defendants, whereby they chose to appear through a lawyer. Thereafter, the plaintiff had filed a summons for judgment, a copy of which was sent to the defendants at their respective addresses through Registered Post, wherein the postal endorsement, so far as defendant No.1 is concerned, is shown/recorded as "Not Claimed".
10. As far as the defendant No.2 - company is concerned, as per the order dated 16.04.2015 passed by the Trial Court below Exhibit 25 in the suit, observed that it is duly served. Page 9 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025
NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined Thus, when defendant No.2 is duly served with the summons for judgment, it was at least the duty of its office bearers to take cognizance of the summons for judgment filed by the plaintiff, which has not been done.
11. It appears that the defendants have jointly filed the impugned application, contending inter alia that they were not served with the copy of the summons for judgment and played ignorance about such summons for judgment and the passing of the decree by crying foul that they were not heard in the matter.
12. This appears to be a factually incorrect statement made by the petitioners in the impugned application and also pressed into service before this Court, as it has been noticed hereinabove that the Trial Court, in its order dated 16.04.2015 passed below Exhibit 25 in the summary suit itself, has categorically recorded that defendant No.2 has been served with a copy of the summons for judgment.
13. When a litigant makes a false and incorrect statement Page 10 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined while seeking an equitable relief, after having been found, the Court would be reluctant to listen to such a litigant who has blatantly made a false and incorrect statement.
14. Be that as it may, the fact remains that defendant No.2 was already served with the summons for judgment and, having chosen not to remain present before the Trial Court and thereby not defended the summary suit, cannot have a right to question it unless special circumstances are made out by it, which, on a bare reading of the impugned application, would not suggest that defendant No.2 has made out any such circumstances.
15. At this stage, it would be apposite to refer to and rely upon the decision in the case of Rajni Kumar (Supra) in paras 9 to 13, which is reproduced hereinbelow:-
"9. The expression "special circumstances" is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the court has to determine the question, on the facts of each case, as to Page 11 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post- decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit.
10. In considering an application to set aside ex parte decree, it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 CPC. Rule 7 of Order 37 says that except as provided thereunder the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. Rule 4 of Order 37 specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of course. Nonetheless, he may be declared ex parte if he does not appear in response to summons, or after entering appearance before framing issues; or during or after trial. Though addressing arguments is part of trial, one can loosely say that a defendant who remains absent at the stage of argument, is declared ex parte after the trial. In an application under Order 9 Rule 11, if a defendant is set ex parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an application under Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex parte against the defendant. If the court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed for hearing by court, the suit would proceed as if no ex parte decree had been passed. But in a suit under Order 37, the procedure for appearance of the defendant is governed by provisions of Rule 3 thereof. A defendant is not entitled to defend the suit unless he enters appearance within ten days of service of summons either in person or by a pleader and files in court an address for service of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to a Page 12 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, up to the date of the decree together with costs. The plaintiff will also be entitled to judgment in terms of sub- rule (6) of Rule 3. If the defendant enters an appearance, the plaintiff is required to serve on the defendant a summons for judgment in the prescribed form. Within ten days from the service of such summons for judgment, the defendant may seek leave of the court to defend the suit, which will be granted on disclosing such facts as may be deemed sufficient to entitle him to defend and such leave may be granted to him either unconditionally or on such terms as the court may deem fit. Normally the court will not refuse leave unless the court is satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.
11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in Page 13 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.
12. Now adverting to the facts of this case, though the appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court was right in accepting existence of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.."
(emphasis supplied)
16. In view of the above, unless special circumstances are made out by the defendants who did not appear and contest the summary suit, no relief can be granted to such defendants when they file an application under Order 37, Rule 4 of the CPC. The impugned application did not disclosed such special circumstances as no legal defence ever raised in the application and so also not argued before Trial Court.
17. So far as the case of defendant No.1 is concerned, it has been recorded by the Trial Court in its impugned order that Page 14 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined the R.P.A.D. sent to defendant No.1 containing the summons for judgment was returned as "Not Claimed". The judgment which has been relied upon by learned advocate Mr. Pandya of the coordinate bench of this Court in the Bai Bachiben Velabhai (Supra) shows the endorsement on the envelope as "unclaimed" is treated as not refused thereby, not valid service. There is a difference between the word "unclaimed" and "not claimed".
18. Furthermore, defendant No.1 has not come out with the plea that the address on which such cover was sent was not the address belonging to him. If the personnel of the postal department came with the cover to serve it upon the person at such address and he does not claim it, it would definitely amount to a refusal to accept such a cover and in that event, postman would always made an endorsement "Not Claimed".
19. Furthermore, Section 27 of the General Clauses Act would clear any doubt in the mind of anyone, as it has been clearly stated that once a registered post is sent, unless the contrary is proved, it is deemed to have been served upon the addressee. Page 15 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025
NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined For ready perusal, Section 27 of the General Clauses Act, 1897 is reproduced herein below:-
"27. Meaning of service by post Where any [Central Act] [Substituted by A.O.1937, for "
Act of the Governor General-in-Council.]or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
(emphasis supplied)
20. It appears that in the case of Bai Bachiben Velabhai (Supra), the aforesaid provision of law was not brought to the notice of the Single Judge of this Court. Further, in view of following direct pronouncements of Honourable Supreme Court of India on aforesaid issue, decision in the case of Bai Bachiben Velabhai (Supra), pales into insignificant being impliedly overruled.
21. It would apt to first refer the decision in the case of K Bhaskaran vs. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510 wherein held thus:-
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NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined "23. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The section reads thus :
"27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice."
(emphasis supplied)
22. Second in line would be in a case of Ajeet Seeds Ltd vs. K. Gopala Krishnaiah reported in (2014) 12 SCC 985 wherein after referring its prevision decisions, Hon'ble Apex Court held as under:
"6. In C.C. Alavi Haji, a three-Judge Bench of this Court was dealing with the question referred by a two-Judge Bench for consideration. The referring Bench was of the view that in D. Vinod Shivappa v. Nanda Belliappa, 2006 6 SCC 456 this Court did not take note of Section 114 of the Evidence Act in its proper Page 17 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined perspective. It felt that presumption under Section 114 of the Evidence Act being a rebuttable presumption, the complainant should make certain necessary averments to raise the presumption of service of notice; that it was not sufficient for a complainant to state that a notice was sent by registered post and that the notice was returned with the endorsement 'out of station' and that there should be a further averment that the addressee-drawer had deliberately avoided receiving the notice or that the addressee had knowledge of the notice, for raising a presumption under Section 114 of the Evidence Act. The following question was, therefore, referred to the larger Bench for consideration.
"Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non- receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa's case?"
7. Dealing with the above question, this Court referred to K. Bhaskaran v. Sankaran Vaidhyan Balan, 1999 7 SCC 510 where this Court referred to Section 27 of the General Clauses Act, 1897 ('the GC Act') and observed that since the NI Act does not require that notice should only be given by 'post' in a case where the sender has despatched the notice by post with correct address written on it, Section 27 of the GC Act could be profitably imported and in such a situation service of notice is deemed to have been effected on the sender unless he proves that it was really not served and that he was not responsible for such non-service.
8. This Court then referred to Vinod Shivappa's case, where the above aspects have been highlighted. This Court quoted the following paragraph from Vinod Shivappa with approval.
"15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee............"
9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read Page 18 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined as under: Furthermore, defendant No.1, being a director of the defendant No.2 - company, cannot claim ignorance that despite service of notice upon defendant No.2, he was not aware of the service of the summons for judgment."
(emphasis supplied)
23. Thus, in view of said peculiar facts of the present case coupled with said provision of law referred herein above and so also direct decision of Hon'ble Apex Court, it would not be gainsaid on part of petitioner no.1 to contend that he was not served with copy of summons for judgement. As such from the entire set of facts, events and conduct of the petitioners- defendants who are not even ready to deposit part of decreetal amount to show their bonafide would lead to suggest that they have successfully evade service and so also avoid money decree of Rs. 63,57,465/ with 18% from date of suit till its realization even though not secured any injunction/stay against it.
24. Lastly, this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, is not required to interfere with the order merely because there is some error of law committed by the Trial Court while deciding the matter, which is not the case here. Unless there is a gross illegality, irregularity, and perversity found in the order passed by the Page 19 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined Trial Court, this Court would not like to interfere with an order which is otherwise passed upon the factual aspect of the matter. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 (Paras. 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Paras. 15 and 16)].
25. As far as the submission of learned advocate Mr. Pandya with regard to the judgment and decree passed by the Trial Court being a nullity and the defendants having made out a good case to defend the suit on its merits is concerned, learned advocate Mr. Kapadia has rightly submitted that the defendants, while filing the impugned application, did not attribute any single issue which touches the merits of the summary suit, thereby not making out any special circumstances.
26. Once the defendants, having had all liberty while submitting the impugned application under Order 37 Rule 4 of the CPC to make out special circumstances and question the validity of the decree on its merits, at this stage, the Page 20 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025 NEUTRAL CITATION C/SCA/10023/2018 JUDGMENT DATED: 23/06/2025 undefined petitioners cannot be allowed to raise such a new plea which was never pleaded and pressed into service before the Trial Court.
27. CONCLUSION 27.1. The upshot of the aforesaid observation, discussions and reasons that the present writ application lacks merit and is required to be rejected, which is hereby REJECTED. No order as to costs. Rule is discharged.
27.2. It is open for the plaintiff to execute the money decree which has been passed by the Trial Court, if not already executed albeit, in accordance with the law.
(MAULIK J.SHELAT,J) MOHD MONIS Page 21 of 21 Uploaded by MOHD MONIS(HC01900) on Tue Jun 24 2025 Downloaded on : Tue Jun 24 22:21:14 IST 2025