Delhi High Court
Surender Goyal vs Vikram Malhotra on 12 July, 2017
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 289/2017
% 12th July, 2017
SURENDER GOYAL ..... Appellant
Through: Mr. S.S.Sastry, Mr. Rajesh
Pandit and Mr. Siddharth Jain,
Advocates.
versus
VIKRAM MALHOTRA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The first appeal under Order XLIII (1)(d) of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant impugning the judgment of the court below whereby the court below has dismissed the application under Order IX Rule 13 CPC filed by the appellant/defendant as also the connected application for condonation of delay.
2. The facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs.4,72,633/- against the appellant/defendant pleading that the appellant/defendant had placed orders for supply of sarees and had received the sarees from time to time. It was pleaded in FAO No. 289/2017 Page 1 of 5 the plaint that as per the accounts regularly maintained there was a huge outstanding amount of Rs.4,80,933/- and to clear which the appellant/defendant had issued five cheques as stated in para 5 of the plaint and which were dated 28.4.2013, 7.5.2013, 14.5.2013, 21.5.2013 and 28.5.2013. Out of the five cheques, cheques dated 28.4.2013 and 14.5.2013 were presented but were dishonored. The respondent/plaintiff had further pleaded in the plaint that the respondent/plaintiff did not deposit the balance three cheques as the appellant/defendant had so requested because of lack of funds. It was further pleaded in the plaint that the appellant/defendant only thereafter paid a sum of Rs.60,000/- leaving a balance of Rs.4,20,933, and that since in spite of service of legal notice dated 28.5.2014 by registered post and speed post the appellant/defendant did not pay the amount due, hence the subject suit was filed.
3. In the suit appellant/defendant was served but he failed to appear and hence was proceeded ex-parte. Respondent/plaintiff thereafter led evidence. The trial court after discussing the evidence led, including the documents exhibited as Ex.PW1/1 to Ex.PW1/20 being the cheques and invoices as also the legal notice, decreed the suit for Rs. 4,20,933/- along with interest at 6% per annum. FAO No. 289/2017 Page 2 of 5
4. The subject applications under Order IX Rule 13 CPC and Section 5 of the Limitation Act, 1963 were filed by the appellant/defendant in November 2016 although the appellant/defendant admittedly came to know about passing of the ex- parte judgment on 31.4.2016. There are twofold issues in this case which require determination. Firstly, whether the appellant/defendant was ever served in the suit because if the appellant/defendant was not served in the suit, the ex-parte judgment could not have been passed. The second issue is whether the appellant/defendant has given sufficient cause for non-appearance.
5. The last para of the impugned judgment shows that the court below has observed that the case of the appellant/defendant that he was never served is shown to be false not only because of the tracking report with respect to summons sent by the registered post but also because in the judicial record there appears an AD card bearing the signatures of the appellant/defendant and which signatures have not been denied by the appellant/defendant in the application for setting aside the ex-parte decree. I may also note that even in this appeal filed there is no specific ground urged by the appellant/defendant that the AD card appearing in the judicial record of the suit does not bear the signatures of the appellant/defendant. Therefore, the FAO No. 289/2017 Page 3 of 5 appellant/defendant was duly served in the suit but he failed to appear in the suit and hence the suit was rightly decreed ex-parte after the respondent/plaintiff's evidence was considered by the court.
6. Accordingly, there is no ground for setting aside of the ex- parte judgment and decree dated 27.2.2015 on the ground that the appellant as a defendant was not served in the suit.
7. The next reason to be examined is whether the appellant/defendant had sufficient cause for non-appearance. In my opinion, this ground has been rightly rejected by the court below in the facts of the present case because appellant/defendant wrongly pleaded that he was never served in the suit and that he came to know of the suit only in April 2016 when he received the certified copy of the judgment and decree dated 31.4.2016, and there is no explanation given in the applications under Order IX Rule 13 and Section 5 of the Limitation Act for non-appearance of the appellant/defendant in the suit and for setting aside of the order since the passing of the order dated 18.12.2014 whereby the appellant/defendant was proceeded ex- parte in the suit.. Putting it in other words, the appellant/defendant had to explain delay not from April 2016 till the filing of the application under Order IX Rule 13 CPC on November 2016 but the delay had to be explained from 18.12.2014 till November 2016 when the FAO No. 289/2017 Page 4 of 5 application under Order IX Rule 13 CPC is filed, and which has not been done. The only explanation is for condonation of delay from April 2016 to November 2016 and which explanation has also been rightly disbelieved by the court below by observing that the accident which is mentioned to have happened of the appellant/defendant is much earlier of August 2015 than April 2016, and which accident is of falling from the scooter. The further important fact noted by the court below is that the only injuries mentioned in the discharge summary showed blunt trauma on different parts of the body with swelling in the leg, and therefore, there is no head injury as is claimed by the appellant/defendant.
8. Accordingly, I do not find any reason to interfere with the impugned order. Dismissed.
JULY 12, 2017/ib VALMIKI J. MEHTA, J
FAO No. 289/2017 Page 5 of 5