Delhi District Court
Interline Global Logistic Pvt. Ltd vs Hari Mohan on 25 September, 2014
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IN THE COURT OF SHRI SIDHARTH SHARMA : ADDITIONAL DISTIRCT
JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
M No.01/13
In the matter of :
Interline Global Logistic Pvt. Ltd. .......Plaintiff
Versus
Hari Mohan ........Defendant
25.09.2014
ORDER :
Vide this order, I shall dispose off the application U/o IX Rule 7 CPC and the application u/s 5 of Limitation Act for condonation of delay in filing the present application.
2 The facts necessary for disposal of this application is that plaintiff had filed a suit for recovery against the defendant on 04.06.2011. The defendant was duly served by way of speed post as well as Process Server. As per report on speed post, it was reported "refusal". Similarly, Process Server also reported that he met the proprietor of the defendant and he after seeing the summons refused to take the summons. On the basis of these reports, Sh. Inderjeet Singh, Ld. ADJ03, South District, Saket courts proceeded the Contd....1 of 5 : 2 :
defendant exparte. Thereafter, plaintiff got his exparte evidence recorded and the suit was ultimately decreed in his favour on 23.04.12
3 Execution petition was filed on 20.09.12. Bailiff was appointed by the court and when he went to the same address as was stated in the main suit and execution petition, the defendant gave him two cheques for satisfaction of the decreetal amount but the said cheques were dishonoured due to the reasons "stop payment".
4 An application under the provisions of Order IX Rule 13 CPC was filed on 01.11.12. Another application u/s 5 of Limitation Act was filed at later stage i.e on 13.03.13 after the decree holder had taken the objection regarding delay in filing the application U/o IX Rule 13 CPC. 5 I propose to take the application U/s 5 of Limitation Act first. The JD / defendant has nowhere explained reasons for delay in filing the application U/o IX Rule 13 CPC. The reasons given are that he came to know of the decree when Bailiff came to his address on 21.09.12 and he had issued two cheques. However, no explanation has been given that why no application U/o IX Rule 13 CPC was filed even if we take the period of limitation to start from 21.09.12 whereas the application U/o IX Rule 13 CPC was filed on 21.11.12. Even though the application U/s 5 of Limitation Act was not filed which was Contd....2 of 5 : 3 :
ultimately filed on 13.03.13 after objections were taken by the DH. The present application is carrying bald allegations and do not appeal to the common sence. The JD was very well aware of the case at the time he handed over the cheques to the Bailiff on 21.09.12 and no reasonable explanation has been given for delay in filing the application U/o IX Rule 13 CPC or the present application U/s 5 of Limitation Act. However, still believing the version of the defendant, the delay is condoned for the simple reason that there is always an endeavor of the court to decide the matters on merits after hearing the application U/o IX Rule 13 CPC as parties cannot be punished for their mistakes. Accordingly, I condone the delay in filing the application U/o IX Rule 13 CPC. The application U/s 5 of Limitation Act is accordingly allowed. 6 Order IX Rule 13 CPC provides that a decree passed exparte can be set aside if the party against whom such decree is passed satisfy the Court : (1) that the summons were not duly served or (2) that he was prevented by any sufficient cause from appearance when the case was called on for hearing.
7 Now coming to the application U/o IX Rule 13 CPC. It is seen that the defendant was served by way of speed post as well as Process Server for 14.09.2011 but defendant chose to refuse the summons and also chose not to appear before the court. The court record reveals that defendant was served by Contd....3 of 5 : 4 :
both the methods i.e by Process Server as well as speed post and clearly it was recorded that defendant refused to take the summons. In the present application, the defendant has claimed that he was never served with the summons. However, no sufficient ground has been given or special circumstance has been shown to come to the conclusion that defendant was not served. On the contrary, it is seen from the record that suit was filed by the plaintiff giving similar address of the defendant as was given in the execution petition and Bailiff also went to same address where he met the defendant who issued two post dated cheques towards satisfaction of the decree which were subsequently dishonoured. It was held in I.D. Sharma Vs. Kapil Kohli in CM(M) 578/2011 with CM 9356/2011, decided on 28th August, 2012 that "Mere bald denial of refusal of summons was not sufficient enough to bring his case within the ambit of a special circumstance. It is settled law that the exparte decree against the defendant can only be set aside if he satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing and further in addition, there existed special circumstance warranting setting aside of the exparte decree. The legislature in its wisdom has made this proviso mandatory in nature and thus it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated therein.
It is also settled law that if summons issued by registered post bearing correct address of the defendant and is returned by the postal Contd....4 of 5 : 5 :
authorities with the report of "refusal", there is presumption that the addressee received the summons sent by the registered post. Such presumption was available under Section 27 of General Clauses Act as also Under Section 1114 Illustration (f) of the Indian Evidence Act, 1872. However, the said presumption is rebuttable on consideration of evidence of impeccable character and not by here bald averments or assertions."
8 Defendant has not been able to show any illegality or impropriety and there are no sufficient grounds or circumstances for nonappearance and for setting aside exparte decree. It is not the case of the defendant that he was not served. He was duly served, but chose not to contest the suit. 9 In view of the settled position, I do not find it a fit case for allowing the application U/o IX Rule 13 CPC. Accordingly, the same is dismissed. The file be consigned to Record Room after completion of necessary formalities.
Dictated and announced in the open court on 25.09.2014 (SIDHARTH SHARMA) ADJ04 (South) Saket Courts / New Delhi 25.09.2014 Contd....5 of 5