Delhi District Court
M/S Anand & Associates vs Ajit Singh on 21 July, 2012
IN THE COURT OF SH. SUNIL KR. AGGARWAL: ADDL.
DISTRICT JUDGE (CENTRAL) 10: DELHI
MCA No. 01/12
1. M/s Anand & Associates,
21A, BlockC(2D), Janakpuri,
New Delhi58.
Through its partner Sh. Anand.
2. Sh. M. M. Rai Anand,
S/o Sh. S. R. Anand,
21A, BlockC(2D), Janakpuri,
New Delhi58.
Also at :
55B, BlockC (2D), Janakpuri,
New Delhi58. .... Appellants
Versus
Ajit Singh,
S/o Late Sh. Neki Ram,
Prop. of Shri Ram Building Material Supplier,
Village Singhola,
Delhi40. .....Respondent
Appeal presented on 23.01.2012
J U D G M E N T:
1. The present appeal under Order 43 Rule 1 CPC of the appellants, who were the defendants before Ld. Trial court, take exception to order dated 11.01.2012 whereby their application under MCA No. 01/2012 Page no. 1 of 7 Order 9 Rule 13 and Section 151 CPC has been dismissed.
2. The facts of the case in brief are that the respondent, plaintiff in the suit, had filed suit for recovery of Rs. 1,12,530/ with interest @ 18% per annum against the appellants on 30.08.2006 under summary procedure. At the threshold however it was treated as ordinary money recovery suit. The appellants did not appear despite service of settlement of issues in ordinary manner as well as through registered post. They were proceeded exparte on 03.10.2006 by Ld. Trial court. After recording exparte evidence of the plaintiff, an ex parte decree in the sum of Rs. 1,12,530/ with interest @ 8% per annum from the date of filing of suit till realization and costs was passed against the appellants on 26.05.2007.
3. An application dated 30.04.2008 under Order 9 Rule 13 and Section 151 CPC was filed by the appellants in the Ld. Trial court on 05.05.2008 for setting aside the exparte decree contending that they were not served with summons of a suit by either modes and therefore were deprived of the opportunity to contest the suit. They claimed to have became aware of the exparte decree on 25.04.2008 when a representative of respondent asked appellant no. 2 to talk to the respondents over telephone. The particulars of decree were inform to appellant no. 2 by the respondents whereafter necessary inquiry was made and the application was filed without undue delay. The MCA No. 01/2012 Page no. 2 of 7 respondent had opposed the application by filing reply. By the impugned order Ld. Trial court observed that the summons were duly served upon the appellants and therefore there was no ground of setting aside the exparte decree.
4. The grounds of grievance of the appellants are that the Ld. Trial court has passed a nonspeaking order without affording him an opportunity to substantiate the case by leading appropriate evidence in view of their incessant plea that they were not served with summons of the suit. The examination of the Process Server would have revealed that the reports on the summons were procured and the appellants in fact had no knowledge of the pendency of the suit. It is claimed that the Ld. Trial court did not touch the merit of application and the law related thereto but has ritually recited that no ground for setting aside exparte decree exists without delving into the facts pleaded in the application. The order dated 11.01.2012 and 26.05.2007 of Ld. Trial court are thus sought to be set aside.
5. In his detailed reply, the respondents had termed the grounds to be baseless, misconceived and devoid of merits. The identity of Sh. Rajesh, the receiver of summons has not been disputed by the appellants. It is also not their case that the acknowledgment on AD cards are forged and fabricated therefore the appeal has no substance. It is alleged that the appellants took a number of MCA No. 01/2012 Page no. 3 of 7 adjournments in the Ld. Trial court to advance their arguments on application under Order 9 Rule 13 CPC. The respondent has also touched the merits of the case and stated that the conduct of appellants in getting the cheque of Rs. 50,000/ dishonored reflects their ill intention to clear his dues.
6. I have heard Ms. Kamlakshi Singh Chauhan, Adv. Ld. counsel for appellants, Sh. Bharat Gupta, Adv. Ld. counsel for the respondent and carefully perused the trial court records. Summons of the suit were sent to the appellants in ordinary manner as well as through registered post. Although one of the process was of the address 55B, Block C (2D), Janakpuri, New Delhi yet all the three ordinary summons were received at 21A, Block C (2D), Janakpuri, New Delhi by one Sh. Rajesh on 30.09.2006 indicating that he is the brother of appellant no. 2. He had informed that none of the defendants exists at 55B and that his brother is putting up at 21A only. The summons sent through registered post on or about 18.09.2006 also got served upon the addressees although the initials of the recipient on all the three AD cards, one of which was of different number, are identical.
7. The appellants have not challenged the address submitted by the respondent in the memo of parties of the plaint. U/s 27 of the General Clauses Act, a letter sent through registered post at correct MCA No. 01/2012 Page no. 4 of 7 address draws a presumption of its delivery to the addressee. It is for the person disputing service to atleast plead some facts which may raise doubt about the presumption. Merely saying that the addressee did not receive the post will not suffice. The application was filed by the appellants after inspecting the judicial record of suit of Ld. trial court. They were aware of the service reports relied upon by the court. Even then they did not deem it fit to disown the initials on the AD Cards nor has it been contended that the person putting such initials is not associated with them. It could also have been said that none of the partners of appellant no. 1 or the persons working with it put such initials nor identify to whom these belong.
8. Similarly the process server has given specifications of the person to whom he had delivered the ordinary summons. The appellants did not specifically refute that no person with the name 'Rajesh' was present at their premises on 30.09.2006 or that he was not related to them and competent to receive summons on their behalf. Without giving proper and sufficient explanation in this behalf, the appellants could not have expected the Ld. Trial Court to take evidence in the matter by calling the process server or otherwise, just because they had denied having received summons of the suit. As has been observed in "Nai Duniya, Urdu Weekly Newspaper Vs. Presiding Officer, Labour Court, 157 (2007) DLT 234", there was no reason for the Trial court to disbelieve the process server and to MCA No. 01/2012 Page no. 5 of 7 believe the appellants about the delivery of summons. The court has to presume that all officials Acts have been done in proper manner. It can be rebutted only by strong evidence. A mere denial of signatures cannot rebut the presumption of proper service. There is no reason why the process server would forged signatures of anyone or that the respondent had any hand in the service of summons.
9. So far as the service of summons through registered post is concerned, it cannot be disbelieved because the postman operating in a particular area becomes familiar with the persons who are generally available to receive the post. Without any strong reasons from the appellants, it cannot be accepted that the postman would have delivered the three registered envelopes to an unauthorized person. Even in the grounds of appeal strong case to disbelieve the service reports has not been made out. The diligence of appellants is writ large from the fact that the application U/o 9 rule 13 CPC was ready with them on 30.04.2008 whereas the trial court suit file was got inspected by them on 03.05.2008.
10. As per Order 9 rule 13 (2) CPC the provisions of Limitation Act are applicable to the application moved U/o 9 rule 13 (1) CPC. The appellants although tried to explain the manner of becoming aware of the exparte decree on 25.04.2008 but did not specifically seek condonation of delay in moving the application. The MCA No. 01/2012 Page no. 6 of 7 appellants were duly served with the summons three clear days prior to the date of joining and therefore, had sufficient time to appear and defend the suit.
11. The impugned order dated 11.01.2012 although is cryptic yet is correct and inconsonance with the judicial record. The appellants have miserably failed to show that the reports on the service reports by two notes were procured by the respondent or that they deserve an opportunity to lead evidence in support of their application. The appeal is bereft of merits. It is dismissed with costs conservatively quantified at Rs. 4,000/.
Embargo put to the release of decreetal amount vide order dated 01.03.2012 is hereby vacated. Attested copy of this order be sent to the Ld. Trial Court. Trial court record be released.
Appeal file be consigned to Record Room.
Announced in the open court on 21st Day of August, 2012.
(Sunil Kr. Aggarwal)
Addl. District Judge (Central)10
Delhi
MCA No. 01/2012 Page no. 7 of 7