Delhi High Court
Tha Institute Of Chartered Accountants ... vs Shree Raj Travels & Tours Ltd. on 17 July, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 30/2011
% JULY 17, 2014
THA INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA.
......Petitioner
Through: Mr.Rakesh Agarwal with Mr.Pulkit
Agarwal, Advocates.
VERSUS
SHREE RAJ TRAVELS & TOURS LTD. ...... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M.No.5005/2011
1. For the reasons stated in the application, the delay of 78 days in the filing the petition is condoned.
2. Application stands disposed of.
C.R.P. 30/2011 & C.M.No.5004/2011
1. None has appeared for the respondent/defendant for the last five dates of hearing as per the order sheets of this Court. Even today no one appears C.R.P.No.30/2011 Page 1 of 4 for the respondent/defendant. I have, therefore heard the counsel for the plaintiff/petitioner.
2. This revision petition is filed under Section 115 Code of Civil Procedure 1908 (CPC) against the impugned order of the court below dated 13.9.2010 by which the application filed by the defendant/respondent under Order 9 Rule 13 CPC was allowed and the ex-parte judgment and decree dated 25.10.2004 passed in the suit filed for Rs.6,42,790/- was set aside.
3. As per the record the suit was instituted in the original side of this Court. Respondent/defendant was served in the suit and had appeared through counsel. The suit was thereafter transferred, on account of change of pecuniary jurisdiction of this Court, to the district court. The case of the respondent/defendant is that after transfer of the suit, he was not served, and therefore the suit has been decided ex-parte against the respondent/defendant illegally.
4. The fact of the matter is that the respondent/defendant after transfer of the suit to the district court was issued notices for service at the Nehru Place address, being the address of the respondent/defendant as given in the plaint. No doubt, the notices issued by the court records that the office of the respondent/defendant stood closed, and therefore the notices were fixed at C.R.P.No.30/2011 Page 2 of 4 site, and accordingly there was no personal service upon the respondent/defendant, however, I may note that under Order 6 Rule 14A CPC, it has been deliberately put in as a statutory obligation that if the party to suit shifts his address, then it is incumbent upon such a party to file fresh address so that whenever and wherever the fresh notices have to be served, is known. A person cannot take advantage of his own wrong, more so, in failing to comply of the statutory obligation to give fresh address. Also, it is noted that the advocate who appeared for the defendant admittedly did not seek discharge from the case when the case was transferred from the original side of this Court to the district court and he has simply noted in the court notices issued to him that he does not have instructions from the defendant/respondent.
5. It is to be noted that even the application filed under Order 9 Rule 13 CPC on 12.10.2009 is grossly barred by delay and laches and there is no discussion of any substance whatsoever in the impugned order why the delay should be condoned. The respondent/defendant was served in the execution proceedings as many as 4 times on 26.12.2008, 29.01.2009, 12.02.2009 and 07.03.2009. The application under Order 9 Rule 13 CPC, therefore should have been filed within one month from 26.12.2008 or at least within 30 days C.R.P.No.30/2011 Page 3 of 4 from 29.1.2009 when the respondent/defendant was served at the Mumbai address. There is, however, no explanation amounting to sufficient cause for condoning the delay from February 2009 to October 2009 when the application under Order 9 Rule 13 CPC was filed. The deliberate delay is another step of the respondent/defendant to delay and defeat the execution of the money decree passed against it.
6. In view of the above, it is held that the respondent/defendant was validly served after transfer of the suit from the original side of this Court to the district court and that there was deliberate failure to file fresh address of the respondent/defendant as per the statutory obligation of filing the fresh address for service, and hence the ex-parte judgment and decree dated 25.10.2004 was validly passed.
7. The appeal is accordingly allowed and the impugned order dated 13.9.2010 is set aside. The ex-parte judgment and decree dated 25.10.2004 will stand revived. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J.
JULY 17, 2014 KA C.R.P.No.30/2011 Page 4 of 4