Delhi District Court
Rca No. 7/ vs Sh. Vinod Kumar on 30 April, 2011
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII, ROHINI COURTS, DELHI
RCA No. 7/10
Sh. Dungar Lal
S/o Sh. Hazari
R/o H. No. 89/1& J, Bhood Bharat Nagar,
Railway Colony,
Distt. Ghaziabad, U.P. .........Appellant
Versus
Sh. Vinod Kumar
S/o Sh. Rambir Singh,
R/o B211, Jawahar Park,
Chakki Wali Gali,
Sahibabdad, Ditt. Ghaziabad, U.P.
Also At
C/o Praveen Kumar Goel
38, Matri Apartments
Plot No. 29, Sector9,
Rohini, Delhi110085. ..........Respondent
Date of Institution the suit : 27.04.2010
Date on which the order was reserved : 25.04.2011
Date of decision : 30.04.2011
ORDER
Vide this order I shall dispose off this appeal filed by the defendant/appellant against the impugned judgment/decree RCA No. 7/10 Page no. 1 of 15 dated 29.03.2010.
1. Brief facts, in nutshell, are that plaintiff/respondent filed the suit for recovery of Rs. 60,000/ U/o 37 of CPC. The defendant/appellant approached the plaintiff/respondent for grant of friendly loan Rs. 60,000/ as he was in dire need of money for the marriage of his brother. Plaintiff was having cordial relation with the defendant and he had given a sum of Rs. 60,000/ to the defendant on interest @ 24% per annum. The defendant has issued a post dated cheque of involved amount in the present suit to repay the said loan amount advance by the plaintiff to the defendant. When the cheque was presented for encashment by the plaintiff, the same was dishonoured and the plaintiff was very shocked on receiving the said report from the banker of defendant and narrated the story in this regard to the defendant. The defendant assured the plaintiff to repay the amount but he failed to pay the same.
RCA No. 7/10 Page no. 2 of 15 Thereafter, plaintiff sent a legal notice dated 10.11.2009 to the defendant but the defendant failed to pay the amount, so the present suit has been filed.
2. The defendant was served with summons for appearance of the summary suit but the defendant failed to file appearance within the statutory period of 10 days, so Ld. Trial Court, in terms of contents of the order 37 CPC admitted the contents/averments of the plaint and in the absence of any appearance on behalf of defendant, present suit is decreed in favour of the plaintiff. The appellant being aggrieved by the impugned judgment has filed the present appeal against the judgment/decree passed by the Ld. Trial Court.
3. It is contended by the Ld. counsel for the appellant/defendant that appellant/defendant was not served with summons for appearance as per law on 29.01.2010 under provision of Order 37 of CPC. The appellant/defendant is RCA No. 7/10 Page no. 3 of 15 served through courier and there is no such order of the Ld. Trial Court that appellant/defendant was to be served by way of courier instead of registered post. It is further contended that said courier was received by the appellant/defendant on 22.01.2010 i.e. after the next date of hearing in the present suit in the trial court, therefore, the appellant/defendant has refused to accept the same. There is no service on the defendant of the present summary suit, for summons for appearance. It has been further contended that on 22.01.2010, the Ld. Trial Court has observed that appellant/defendant has not been served, so fresh process to the defendant were ordered to be served by way of PF/RC for 03.03.2010 but the Ld. Trial Court on 29.03.2010 had decree the suit observing therein that appellant/defendant failed to file the appearance within 10 days w.e.f 29.01.2010. It has been further contended that plaintiff/respondent has never tried to serve the RCA No. 7/10 Page no. 4 of 15 appellant/defendant as plaintiff/respondent has never sent the summons through registered post and sent the same through courier without there being any order of the court in this regard. It has been further contended that even if it is presumed that appellant/defendant has been served through courier but service through courier is not a service in the eyes of law U/o 37 Rule 3 of CPC as no document along with complete set of paper book was sent to the defendant through courier. Even if, it is presumed that appellant/defendant has been served but the said service is per se illegal, so judgment passed by the Ld. Trial Court is liable to be set aside. In this regard he relied upon "Goyal MG Gases Ltd. V. Premium International Finance Ltd. & Ors. 138 (2007) Delhi Law Times 259, Vijaya Home Loans Ltd. V. M/s Crown Traders Ltd. & Another 2001 VII AD (Delhi) 475, Pleasant Securities & Finance Ltd. V. NRI Financial Services Ltd. & Ors. 2000 IV AD (Delhi) 768, Motilal RCA No. 7/10 Page no. 5 of 15 Banarasidass Publishers Pvt. Ltd. V. Standard Chartered Bank, Manu/DE/0129/2007, Hans Raj V. Lakhi Ram AIR 2005 Delhi 87, Punjab and Sind Bank V. Ramji Das Khanna & Anr. AIR 1984 Delhi 175".
4. It has been further contended that Ld. Trial Court has passed the order in a hurriedly manner without going through the records as the appellant/defendant had already filed his appearance, so the Ld. Trial Court has failed to exercise its jurisdiction in a judicious manner. It has been further contended that Ld. Trial Court has also failed to appreciate the fact that the trial court is lacking territorial jurisdiction as the defendant/appellant is resident of Ghaziabad and the cheque in question was also drawn in Punjab National Bank, Ghaziabad. So no cause of action or any part of cause of action has arisen within the territorial jurisdiction of the trial court and it is settled preposition of law that if the court is lacking territorial RCA No. 7/10 Page no. 6 of 15 jurisdiction to entertain the suit, the judgment/decree passed by the said Court is nullity and liable to be set aside at any time. In this regard he has relied upon "Kusum Ingots & Alloys Ltd. V. Union Of India & Another (2004) 6 SCC 254, Rashtriya Mahila Kosh V. The Daleview & Anr. I.A. No. 470/2005 in CS(OS) No. 880/2004, Carmel Overseas Ltd. V. Sturdy Industries Ltd. 177 (2011) Delhi Law Times 789".
5. It has been further contended that respondent/plaintiff has not come to the court with clean hands, as the plaintiff/respondent has withheld the material documents and also suppressed material facts from the court in order to gain advantage in the case, so the person who is playing fraud with the Court can be summarily be thrown out at any stage of the litigation. So the decree/judgment is liable to be set aside and in this regard he has relied upon "MCD V. State Of Delhi & Anr. (2005) 4 SCC 605".
RCA No. 7/10 Page no. 7 of 15
6. It has been further contended that appearance was filed by the defendant on 08.03.2010 so even if, there is a delay of some days in filing appearance the delay should have been condoned. In this regard he has relied upon "Nand Singh V. Estate Officer and Anr. AIR 1993 DELHI 38".
7. It has been further contended that, even if, there is a delay of about one month so the decree/judgment passed which should have been condoned by the Ld. Trial Court, therefore, impugned judgment/decree is liable to be set aside. It has been further contended that if there is delay occurred on account of some mistake of Ld. counsel for the parties, the delay should be condone. In this he has relied upon "M/s Aradhana Textiles Pvt. Ltd. V. M/s Vishnu Textiles Traders & Ors. AIR 1990 Rajasthan 98" .
8. On the other hand, Ld. counsel for the defendant/appellant has contended that the loan was advance RCA No. 7/10 Page no. 8 of 15 to the defendant at Delhi as the plaintiff/respondent is resident of Delhi, so a part of cause of action has accrued within the territorial jurisdiction of the Ld. Trial Court and defendant/appellant was served and he has filed appearance on 12.03.2010 whereas as per his admission he was served on 29.01.2010 with the summons for appearance of this summary suit. The defendant had failed to file appearance with the statutory period of 10 days so this application is barred by limitation and has rightly been taken into consideration by the Ld. Trial Court. There is no merits in the appeal and it is prayed that this appeal may be dismissed with cost.
9. I have heard the Ld. counsel for the parties and have gone through the record.
10. The first contention of the Ld. counsel for the appellant is that he has not been served as per law and the process of summary suit i.e. summons for appearance has not been RCA No. 7/10 Page no. 9 of 15 served on the defendant/appellant. It has been contended that summons for appearance of summary suit were not accompanied by the copy of plaint nor any document was annexed with it, so the same is not a legal service in the eyes of law. It has been further contended that there was no order with regard to the service of the defendant/appellant by courier and the defendant/appellant has been served with the process through the courier on 29.01.2010 i.e. after the date fixed for hearing of the present suit and it has been further contended that Trial Court has observed that on 22.01.2010 defendant has not been served and fresh process was issued for 03.03.2010 but there appears to be no substance in the contention that appellant/defendant was not served as per U/o 37 Rule 3 of CPC for putting appearance in terms of the procedure of summary suit. It has been very categorically admitted by the defendant/applicant in his above said application moved for RCA No. 7/10 Page no. 10 of 15 filing appearance that defendant was served with summons for appearance of the summary suit on 29.01.2011. There can be no dispute regarding the ratio of judgments relied upon by the appellant/defendant relating to the service but the ratio of those judgment is not applicable to the facts and circumstances of the present case as defendant himself admitted in his above said application for appearance that he was served with the summons for appearance of this summary suit on 29.01.2011 and he filed this application on 10.03.2010. Therefore, there is no illegality in the service of the defendant/appellant with summons for appearance.
11. Now coming to the second contention of the appellant/defendant that there is no delay in putting appearance as the defendant/appellant was granted time by the Ld. Trial Court for filing appearance, but this contention is also contrary to the document on record of the Ld. Trial Court.
RCA No. 7/10 Page no. 11 of 15 In the order dated 03.03.2010, the Ld. Trial Court has observed that despite service on 29.01.2010, the defendant has not file the appearance in terms of the order 37 CPC and counsel for the defendant has sought adjournment and that adjournment was granted.
12. From the perusal of order dated 29.03.2010 passed by the Ld. Trial Court, it can not be inferred that delay in putting the appearance was condoned and the adjournment was granted in order to give an opportunity to the defendant to file appearance after moving an application for condonation of delay. Appearance filed by the defendant/appellant is not accompanied by any application seeking condonation of delay. The statutory period for putting appearance is 10 days as per the procedure provide for summary suit. Even further more, the appellant/defendant had not moved application before the Ld. Trial Court for seeking condonation of delay in putting RCA No. 7/10 Page no. 12 of 15 appearance, no such ground is also made/detailed in the grounds of appeal. Judgment relied upon by the Ld. counsel for the defendant/appellant to fortify his submissions that oral application is maintainable for seeking condonation of delay is not applicable to the facts of present case. There is no dispute regarding the ratio of judgment relied upon by the defendant but there is a delay of more than one month in putting appearance by the appellant whereas in the judgment relied upon by the Ld. counsel for the defendant/appellant there was delay of only one day. So far as the judgment relied upon by the Ld. counsel for the defendant in case titled "M/s Aradhana Textile V. Vishnu Textiles (Supra)" same is not applicable to the facts and circumstances of the present case. This is not a case of defendant that on account of mistake of his counsel, he could not file appearance within the prescribed period of limitation.
RCA No. 7/10 Page no. 13 of 15
13. The last contention raised by the Ld. counsel for the defendant that this Ld. Trial Court has not the territorial jurisdiction to entertain the suit. This contention is to be entertained only, in case, the defendant had put appearance in terms of procedure prescribed for summary suit but in the absence of any appearance on behalf of the defendant the averments made in the plaint of summary suit are deemed to be admitted and the plaintiff is entitled for judgment forthwith. But even for the sake of arguments this contention of Ld. counsel for the defendant is to be accepted that there is lack of territorial jurisdiction in the Ld. Trial Court as cheque was issued in Ghaziabad and parties are also residing in Ghaziabad but for determination of the territorial jurisdiction as disclosed in the plaint the loan was disbursed in Delhi so a part has been accrued within the territorial jurisdiction of the Ld. Trial Court of Delhi. So this contention of Ld. counsel for the defendant is RCA No. 7/10 Page no. 14 of 15 also fallacious and same is to be rejected.
14. From the above said discussion, I am of the opinion that the Ld. counsel for the appellant/defendant has failed to point out any illegality in the impugned judgment/order, so the present appeal is hereby dismissed. Reader is directed to prepare Decree Sheet accordingly. TCR be sent back. File be consigned to record room.
Announced in the Open Court (VIJAY KUMAR DAHIYA)
On this 30.04.2011. ADJII : ROHINI : DELHI
RCA No. 7/10 Page no. 15 of 15
RCA No. 7/10
30.04.2011
Present: Ld. counsel for the parties.
Vide separate order, present appeal is hereby dismissed. Reader is directed to prepare Decree Sheet accordingly. TCR be sent back. File be consigned to record room.
(VIJAY KUMAR DAHIYA) ADJII(NW):ROHINI:DELHI.
30.04.2011.
RCA No. 7/10 Page no. 16 of 15