Delhi High Court
Smt. Kanta Gupta @ Chander Kanta Gupta vs Sh. Narender Kumar Garg & Anr. on 9 July, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 171/2014
% 9th July, 2014
SMT. KANTA GUPTA @ CHANDER KANTA GUPTA ......Appellant
Through: Mr. V.K. Agarwal, Advocate.
VERSUS
SH. NARENDER KUMAR GARG & ANR. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.10819/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ FAO No.171/2014 and C.M. No.10818/2014 (stay)
2. This first appeal is filed under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (CPC) against the impugned order of the court below by which the application of the appellant/defendant under Order 9 Rule 13 CPC has been dismissed.
FAO No.171/2014 Page 1 of 3
3. The court below notes that though the appellant claims that she was not served in the suit, however there was a report on record that summons in the suit were accepted by son of the appellant/defendant. Once that is so, service in law was held to be complete in terms of Order 5 Rule 15 CPC by service on an adult member of the family. Accordingly, nothing turns on the aspect that the appellant/defendant stated that she was not living in the property because the property was being constructed. I may note that alongwith the application under Order 9 Rule 13 CPC which has been dismissed by the impugned judgment, no affidavit has been filed of the son of the appellant/defendant that the signatures appearing on the summons are not his signatures. This in my opinion is sufficient not only to dismiss the application under Order 9 Rule 13 CPC but also the present appeal.
4. The suit in question which was decreed exparte for Rs.12 lacs by the judgment and decree dated 8.3.2013 was a suit by the respondent/plaintiff to claim double the amount of part price paid because of the failure of the appellant/defendant/seller to sell the suit property for consideration of Rs.80 lacs. Advance amount paid was Rs.6 lacs, and therefore relying upon the judgment of the Supreme Court in the case of Satish Batra Vs. Sudhir Rawal (2012) 10 SCALE 393, the suit was decreed FAO No.171/2014 Page 2 of 3 for double the amount of the advance price paid.
5. In view of the above, I do not find any error in the impugned judgment, and therefore the appeal is dismissed, leaving the parties to bear their own costs.
JULY 09, 2014 VALMIKI J. MEHTA, J.
Ne
FAO No.171/2014 Page 3 of 3