Delhi District Court
Union Bank Of India vs Rhythm Cables And Others on 21 October, 2009
IN THE COURT OF SH. KAMLESH KUMAR; AD&SJ(CENTRAL)-17,DELHI
M. No. 20/06
Union Bank of India ......Plaintiff
Versus
Rhythm Cables and others ......Defendants
ORDER
This order will dispose of an application under Order 9 Rule 13 read with Section 151 CPC filed on behalf of the Defendants/Judgment Debtors M/s Rhythm Cables and others, for setting aside the exparte judgment and decree dated 11.07.2002 passed against them in the suit for recovery of Rs.3,69,342.15 filed by Union Bank of India.
2) The Applicants / Judgment Debtors have stated that after registration of the suit against them on 03.07.2000, the summons were ordered to be served and finally on 03.04.2001, the court proceeded exparte against the Defendants no.1, 2, 4 & 5. The court also received the report that the Defendant no.3 had expired. An application under Order 22 Rule 4 CPC for bringing the LRs of the Defendant no.3 was filed by the Decree Holder/Plaintiff and a notice was ordered to be issued only to his son Shri Suresh Gambhir,
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though there were other LRs also. The Applicants have further stated that appropriate steps were not taken for service of LRs of deceased Defendant no.3 and the said LR was served by publication for 03.04.2002. However, since Shri Suresh Gambhir did not appear, he was also proceeded against exparte. The court proceeded to record exparte evidence and decreed the suit on 11.07.2002.
3) The Applicants have alleged that the reports on summons / notices sent to all the Defendants were procured and the process server did not visit the spot at all. The Applicants have further alleged that the reports pertaining to 03.04.2001 on the basis of which Defendants no. 1,2,4 & 5 were proceeded exparte is also procured report and the report on ADs pertaining to registered covers escaped the notice of court that somebody put his signatures on all the ADs and the said person was neither any Defendant nor from the Defendant firm. The Applicants have claimed that the Defendants no.1,2,4 & 5 had no knowledge about the pendency of the suit. The Applicants have also claimed that due steps to serve LRs of deceased Defendant no. 3 were not taken and he was served by substituted service and the Decree-Holder ensured that the copy of the newspaper did not reach him. The Applicants have submitted that the Defendant no.3 has left behind his wife, two sons and
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three daughters and this fact was concealed by the Plaintiff/Decree- Holder Bank.
4) The Applicants / Judgment Debtors alleged that the Decree-
Holder /Plaintiff manipulated the service of summons of suit and filed execution in respect of the judgment and decree in question and warrants of attachment were issued. It was when the baliff came to place of Shri Harsh Baweja Judgment Debtor No.2 for attachment proceedings that they came to know about the impugned judgment and decree.
5) The Applicants have submitted that report on notices are procured because some-one out of the Defendants always remained at the premises of the firm and some Defendants / Judgment debtors who did not have their addresses as that of the firm were impleaded and were reported to be not available by the process server. The non-appearance of the Defendant / Applicant was neither willful nor intentional and was for the reasons explained hereinbefore. The Applicant prayed that the judgment / decree dated 11.07.2002, be set-aside and the Applicants be allowed to contest the suit from the stage of filing / institution.
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6) The application has been contested on behalf of the Plaintiff/Decree-Holder Bank. In reply to the application, it is claimed that the application has been moved to delay the execution of the decree dated 11.07.2002. The decree holder Bank submitted that the Defendants no.1, 2, 4 and 5 were duly served by registered post and the LR of Defendant no.3 was served through publication.
The Decree-Holde/Plaintiff Bank also submitted that registered post is handed over only to the person who is the addressee or found at the address. The Decree-Holder Bank also claimed that the Defendants/Judgment Debtors intentionally avoided the service of the summons and that there was no question of any concealment about the LRs of deceased Defendant no.3 as in the Bank record there was only one LR namely Shri Suresh Gambhir. The Decree Holder/Plaintiff Bank also submitted that the Defendants willfully and intentionally did not appear before the court during the pendency of the suit and prayed that the application be dismissed.
7) The following issues were framed by my ld. Predecessor:-
1) Whether the judgment and decree passed on 11.07.2002 is liable to be set aside as prayed for on behalf of the Applicant due to non service?
2) Relief
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8) The parties were called upon to lead their respective evidence on the issues. The Applicant examined Shri Harsh Baweja. He led evidence through his Affidavit Ex. AW1/A. His affidavit is on the lines of application only. When cross-examined by ld. Counsel for the Decree-Holder/Respondent, he testified that the firm M/s Rhythm Cables closed its business/operation in March 2006. He also testified that he was the only active partner in the firm and used to stay in the office premises during the office hours. He admitted in further cross-examination that the address of the firm / Defendants / Applicants given in the suit is the correct address. He further testified that he came to know about the exparte decree on 07.10.2003 when somebody from the court had come to his residential premises. He testified that other partners of the firm never came to the business premises.
9) The Respondent/Decree-Holder Bank did not lead any evidence on the application/issues.
10) I heard the ld. Counsel for the parties at bar and have carefully gone through the entire material on record.
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11) The Applicant / Judgment Debtor has claimed that he mostly used to stay in the office premises during the office hours and that other partners were not visiting the business premises. He has also testified that he was the only active partner in the firm. The Applicant has claimed that the report on the process issued by the court on the summons of the suit was procured and the decree holder / Plaintiff Bank manipulated the same.
12) The record reveals that on the process of 22.08.2000, the residence of Smt Seema Gambhir, Shri D.R. Gambhir, Shri Deshraj Juneja was found locked. Shri Harsh Baweja was not available at his residence as reported by his servant to the process server and at the business premises of Shri Harsh Baweja and Shri D.R. Gambhir, the person present informed that he was not available viz
- "malik mojud nahi".
13) As per report of the process server for 15.02.2001, Shri Deshraj Juneja was reported to have left the residence to some unknown place. The residence of Shri D.R. Gambhir was found locked by the process server on 27.02.2001. The residence of Smt Seema Gambhir was also found locked on 27.02.2001. Shri D.R. Gambhir was reported on 30.03.2001, to have expired by the
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servant at his residence, to the process server. Shri Harsh Baweja was reported to be out of station on 30.03.2001, at the business premises as well as residential premises. Shri Deshraj Juneja was reported to have left the residential address. When the process server reached the business premises on 30.03.2001, the person available there, stated that Shri Harsh Baweja was out of station and without his permission, he would not receive the summons. The same person reported to the process server that Smt Seema Gambhir visited the business premises occasionally ("kabhi kabhi").
14) The report of the process servers on the summons of suit, issued to different Defendants/ Judgment Debtors reveals that either they were not available or the premises were found locked.
The report also shows that Shri Harsh Baweja was the active partner since the person at business premises confirmed that he was out of station and without his permission, the summons could not be received. The fact that process server was informed, by the person available at the business premises, that Smt Seema Gambhir visited the business premises occasionally and was not regular also confirms the testimony of Shri Harsh Baweja that he was the only active partner and others were not visiting the business premises regularly. Further, the report that the Defendant no.3 had
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expired, also shows that the process-server infact visited the different premises/addresses on which the summons were issued. Had the process server not visited the residence of Defendant no.3, he could not have reported that the Defendant no.3 had expired. Had the process server not visited the business premises, he could not have got the information that Smt Seema Gambhir visited the business premises ("kabhi kabhi") occasionally only. If the process server had not visited the business premises, he could not have reported that the person available at the business premises had refused to accept the summons without permission of Shri Harsh Baweja. It is thus evident that the report of the process server was not procured in any manner and the Applicant / Judgment Debtor has levelled false allegations against the process server as well as the Plaintiff/ Decree Holder Bank's officials.
15) The summons were sent under registered cover also. The AD cards were returned by the postal department and the said AD cards bear the signatures of some person. The contention of ld.
Counsel for the Applicant/Judgment Debtor that the said signature(s) is neither of any Defendant / partner of the firm nor of any person employed with the Judgment Debtor firm has no legal force. The postman would not have delivered the registered
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envelope to anybody other than the one available at the business premises.
16) The law on the point is well-settled. Sending of summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the firm/company itself (Reliance placed on AIR 1980 SC 1163 ). It is also settled proposition of law that service of summons on an employee of the firm/company at the address of the company is good service {Reference may be made to AIR 1993 Calcutta 28;32- P. Sen ( Engg.) Pvt. Ltd. Vs. Delite Builders ( P) Ltd.}. It is also settled law that when a notice is sent through 'registered post' on correct address- it is presumed to have been delivered to the addressee under Section 27 of the General Clauses Act, 1897. (Reliance placed on AIR 1989 SC 630- M/s Madan & Co. Vs. Wazir Jaivir Chand).
17) The court, therefore, rightly concluded that summons were duly served at the business / factory premises of the Defendants / Judgment Debtors. The summons were thus duly served and Defendants were rightly proceeded against exparte.
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18) The entire record only corroborates the testimony of AW Shri Harsh Baweja except that he has falsely denied the knowledge of summons of suit or service thereof. It is just not possible that the employee(s) of the firm would not have informed him that process server and employees of postal department had visited, with court notices.
19) The result of the discussion hereinabove, comes that the Defendants were duly served with the summons of suit and were rightly proceeded against exparte. The Defendants had the due knowledge of the suit instituted / filed against them by the Union Bank of India. Interestingly, it is not the case of the Applicant that no credit / loan facility was availed from the Bank. It is also not the case that the amount taken has been repaid or partly repaid. The firm admittedly closed its operation in the year March 2006. Had the Applicant / Judgment Debtor been a responsible citizen / business personnel, he would have contacted the Bank officials to report the closure of business and even before that if he had approached the Bank, he would have come to know about the outstanding dues and the institution of the suit.
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20) The application has no merits and is accordingly dismissed.
I also consider it expedient to burden the Judgment Debtor/Applicant with costs of Rs.3500/-.
File be consigned to record room.
Announced in the open court (KAMLESH KUMAR)
Today i.e. on 21 October 2009 ADDL. DISTT. JUDGE
DELHI
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M. No.20/06
21.10.2009
Present: None.
Vide my separate order of the date, the application under Order 9 Rule 13 read with Section 151 CPC filed on behalf of the Defendants/ Judgment Debtors M/s Rhythm Cables and others for setting aside the exparte judgment and decree dated 11.07.2002 has been dismissed and the Applicants are burdened with the costs of Rs.3500/-.
File be consigned to record room.
(Kamlesh Kumar) ADJ/Delhi 21.10.2009
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