Delhi District Court
Mahajan International vs Bangla Exports on 6 August, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
M.No.42/04.
Mahajan International .............Plaintiff/Decree Holder
Vs.
Bangla Exports. ............Defendant/JD/Applicant
ORDER
06.08.2011 By way of present order I shall dispose off an application u/o 37 rule 4 r/w section 151 CPC dated 20.09.2004 as filed on behalf of applicant/defendant for setting aside the ex parte judgment/decree dated 03.03.2003.
It is stated in the present application that plaintiff has filed the present suit for recovery of Rs.17,362/- as principle amount by alleging that there was some sort of dealing with the defendant on credit basis from time to time and the defendant purchased Reyon fabric from the plaintiff vide bill no.4457 amounting to Rs.20,013/- and the defendant assured that the payment would be paid as per terms of the market and thereafter defendant did not bother to make the payment, however, defendant issued cheque no.401604 against the material received by the defendant, but, same was returned with the memo 'insufficient fund'. It is further alleged that sum of Rs.17,362/- as principle/bill amount alongwith interest is lying Suit No.M.No.42/04 page 1 of page 6 outstanding with the defendant and the defendant is liable to pay the same.
It is stated that summons for appearance were served upon the defendant and the defendant filed his appearance on 13.05.2002 within time and it was advised by his counsel that now, after the service of summons for judgment, only then, he would have to appear in court. It is the case of applicant that on 16.09.2004, some bailiff alongwith the some person of plaintiff came to the house of the defendant, threatening that they were having arrest warrants and warrant of attachment against the defendant and thereafter, defendant approached his counsel and on inspection of the file, came to know that on the one hand, the process server has given report dated 13.02.2003 and 22.02.2003 that he visited the spot and found the premises locked and even on enquiry no satisfactory witness was found on the spot. On the other hand, on the same day i.e. 13.02.2003, the concerned post man has given a report 'refused' on the registered envelop. It is alleged that both the reports are false, fabricated and both were prepared by the plaintiff in collusion with process server and post man, for playing a fraud upon the court as well as upon the defendant.
It is further case of the applicant that even otherwise, if we consider the pleadings of the plaint and the documents filed alongwith the same, it is crystal clear that the suit is false, as in the suit, plaintiff has alleged a sum of Rs.17,362/- as principle/bill amount alongwith interest, but, bill in question i.e.no.4457 as filed by plaintiff on record is for Rs. 20,013/-. It is further stated that the documents filed by the plaintiff falsify the contention as made in the plaint as there is a bill dated 18.09.1999 vide no.4457 for Rs.20,013/- which means that as per version of the plaintiff the Suit No.M.No.42/04 page 2 of page 6 defendant purchased the goods on credit basis vide above said bill dated 18.09.1999 and thereafter, he issued the cheque in question i.e. cheque no. 401604 for Rs.17,632/- which is of dated 03.05.1999 i.e.about four months prior to bill, which itself falsifies the contention of plaintiff. It is stated that that the defendant in May 1999 ordered for the goods and gave the cheque in question as security for the supply and it was settled between the parties that when the goods would be supplied to the defendant, the payment would be made in cash and the cheque in cash would be delivered back to the defendant, but the plaintiff never supplied the goods and lingered on the matter on the one pretext or the other and on the other hand, presented the cheque in question with the sole view to grab the money of the defendant. It is further claimed that after service of the summons, the defendant put in his appearance in time and the summons for judgment were never served upon the defendant at any time and he never refused to receive the same at any time. It is therefore, prayed that the judgment/decree dated 03.03.2003 be set aside and the defendant may be allowed to contest the case on merits and leave to defend be granted in the interest of justice to defend the suit on merit.
Plaintiff/DH filed the detailed reply of present application while taking preliminary objections that application is nothing but gross misuse of law; applicant has no locus standi to file present application; the JD has not come to this court with clean hands and suppressed the material facts very much in his knowledge; application is based on totally false and fabricated story; JD has filed the present application with malafide intention to unnecessary harass and humiliate the plaintiff. On merits, the contents of the application have been denied. It is further submitted that Suit No.M.No.42/04 page 3 of page 6 the plaintiff has filed the present suit against the defendant on the basis of bills and cheque which were issued by the defendant just to discharge his liability and after the settlement of all the accounts plus the discounts from the bill amount a sum of Rs. 17,362/- was pending against which, the defendant issued the cheque. It is prayed by plaintiff/DH that present application be dismissed with heavy cost.
I have heard ld. counsel for applicant as well as ld.counsel for plaintiff/DH and perused the record.
The first contention of ld. Counsel for plaintiff/DH was that present application is not maintainable as the applicant has not filed any separate application for leave to contest alongwith application u/o 37 rule 4 CPC. Law in this respect is well settled. In an authority reported as AIR 2003 SC 1322 titled as Rajni Kumar Vs.Suresh Kumar Malhotra and Anr., it was held by Hon'ble Supreme Court and I quote:-
"U/o 37 Rule 4 Defendant has to show not only special circumstances which prevented him from appearing or applying for leave to defend, but also the facts which would entitle him leave to defence-- Failure of defendant to disclose facts which would entitle him to defend case-- Rejection of application - No interference --"
Thus, in an application u/o 37 rule 4 CPC, it is also for the applicant to disclose the fact which would entitle him to leave to defend and no separate application is required. As far as first aspect for not filing application for leave to defend is concerned, it is the plea of the applicant that he did not receive the summons for judgment and he never refused to accept the summons through registered post and the reports are procured one. Perusal of record shows that summons for judgment were sent to Suit No.M.No.42/04 page 4 of page 6 applicant/defendant through ordinary process as well as registered post and the process server gave his report that he visited on the premises on 13.02.2003 and on 22.02.2003 and on both the dates, the premises was found locked and no satisfactory reply was received on inquiring from neighbours, while, the post man on 13.02.2003 gave the report of refusal. Thus, there are two contradictory reports, in respect of service of summons for judgment by two different persons on the same day i.e.13.02.2003. Perusal of record further shows that initially, when summons for appearance were directed to be issued vide order 20.03.2002, the ordinary process was received back duly served, while the registered post was received back with report refusal. If we consider the report of process server in respect of service of summons for judgment that the premises was found locked on 13.02.2003 to 22.02.2003, no question for refusal to the post man arises. Therefore, it appears that applicant/defendant has a sufficient cause for not filing application for leave to contest as summons for judgment were not served upon him.
Now coming to the another aspect, whether the application of the applicant/defendant shows the existence of a substantial defence in the suit. In this regard, perusal of record shows that plaintiff filed the present suit for recovery for supplying the goods vide bill no.4457 dated 18.09.1999 amounting to Rs.20,013/- and as per case of the plaintiff to discharge the liability of abovesaid bill, the defendant issued the cheque no.401604 dated 03.05.1999. Here is a bill dated 18.09.1999 no.4457 for Rs.20,013/- but the payment of the bill was made prior to bill i.e.on 03.05.1999 vide cheque no.401604 for Rs.17,632/-. It is not the case of the plaintiff as made out in the plaint that any advance payment/cheque Suit No.M.No.42/04 page 5 of page 6 was issued by the defendant or that any discount was to be given to the plaintiff on bill no.4457 as to why, cheque of Rs.17,632/- was issued against bill of Rs.20,013/- i.e. four months prior to the issuance of bill. Therefore, I am of the considered opinion that defendant has a substantial defence to contest the suit as mentioned in the application, which raises a triable issue to the effect, whether cheque in question was given as a security and no goods were supplied against the claim of plaintiff. Accordingly, present application u/o 37 rule 4 CPC stands allowed and judgment and decree dated 03.03.2003 is set aside and unconditional leave to contest is granted to the defendant.
Announced in open court ( S.K.MALHOTRA ) on 06.08.2011. SCJ/RC/(North)/DELHI Suit No.M.No.42/04 page 6 of page 6