Delhi District Court
Sh. Sunny Rawal vs Sh. Shiv Charan on 2 September, 2014
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE01(WEST) : DELHI
MCA No. 9/11
Sh. Sunny Rawal,
S/o Sh. Ashok Rawal,
R/o BQ88, 2nd Floor,
Shalimar Bagh, Delhi110088.
.....Appellant
Versus
Sh. Shiv Charan,
S/o Sh. Jag Lal,
R/o Jhuggi No.147,
Basant DADA Patil Nagar,
Bhalswa Daiary, Delhi110042. .....Respondent
Date of Institution : 14.03.2011
Date of reserving for Judgment : 02.09.2014
Date of Decision : 02.09.2014
J U D G M E N T
By this order I propose to dispose of an appeal filed by the appellant against the order dated 01.02.2011 in suit No. 732/08 passed by Sh. Sanjay Sharma, ld. JSCC/ASCJ/Guardian Judge (West), Tis Hazari Courts, Delhi, wherein the application under Order IX Rule 13 read with Section 151 CPC for settingaside the ex Sh. Sunny Rawal V/s Sh. Shiv Charan Page 1 of 15 parte judgment and decree dated 13.05.2009 and another application under Section 5 of the Limitation Act for condonation of delay alongwith an application under Order XXI Rule 26 read with Section 151 CPC for stay of the execution were dismissed.
2. Brief facts for the disposal of the appeal are as under :
The respondent has instituted a suit for recovery of Rs.40,000/ (Rs. Forty thousand only) against the appellant. The respondent alleged in the said recovery suit that the appellant requested for a friendly loan of Rs.40,000/ in the month of May, 2005. It has been further alleged that the respondent was closely associated with one Ramji Gupta, taken Rs.40,000/ from him on interest and given the same to the appellant. The appellant executed a receiptcumundertaking in the presence of three witnesses on 01.06.2005 and the appellant was bound to pay Rs.2,000/ as installment on 30th day of every month. It was agreed that in case the appellant fails to pay the installments, then he will be liable to pay penalty / interest as per the rate of interest prevailing in the market.
The appellant has not paid a single installment despite requests made by the respondent and the respondent sent reminder notice to the appellant on 03.11.2006. It has been further alleged that the appellant appeared before the Union Office on 10.11.2006 and Sh. Sunny Rawal V/s Sh. Shiv Charan Page 2 of 15 acknowledged to pay Rs.15,000/ on account of committee amount and loan amount separately and put his signatures on compromise deed. The appellant promised to pay the said amount after selling his shop worth Rs.50,00,000/. The respondent served a legal notice on 16.04.2007 through speed post / AD and also sent a copy to the police. The appellant, however, has never been served with any summon, notice or any other process from the ld. Trial Court and, therefore, he could not appear and contest the false and frivolous suit of the respondent, which resulted into passing of an exparte judgment and decree dated 13.05.2009 by the ld. Trial Court. The appellant came to know about the passing of an exparte judgment and decree dated 13.05.2009 only when he was informed about the visit of the Bailiff, from his mother on 02.03.2010 that some court official / Bailiff had visited on 09.12.2009. After getting the said information, the appellant engaged counsel, who after enquiry and searches came to the knowledge of the proceedings and made an inspection of the judicial file on 04.03.2010 and only thereafter he came to know that an exparte judgment and decree dated 13.05.2009 was passed by the ld. Trial Court. The appellant has submitted that his mother is very aged lady and she has no good memory and, therefore, she forgotten to inform the appellant regarding the visit of Sh. Sunny Rawal V/s Sh. Shiv Charan Page 3 of 15 Bailiff and at the time of visit of Bailiff on 09.12.2009, he was out of station. Thereafter, the appellant immediately filed an application under Order IX Rule 13 read with Section 151 CPC for setting aside the exparte judgment and decree dated 13.05.2009. He has also filed an application under Section 5 of the Limitation Act for condonation of delay alongwith an application under Order XXI Rule 26 read with Section 151 CPC for stay of the execution. The appellant submitted that the respondent has played fraud upon the ld. Trial Court as no summons sent by the ld. Trial Court were received by him and it appears to be some manipulation by the respondent in getting the alleged service in the name of the appellant's sister with the sole motive and intentions to obtain exparte judgment against the appellant. The appellant also submitted that he neither made any request nor he was in need of any money nor he has taken any loan from the respondent. When the respondent himself claimed that he was an employee of the appellant, then how could it be believed that the appellant was in need of money and he requested the respondent and the respondent advanced him the alleged amount. The appellant also submitted that he never signed or executed any receiptcum undertaking dated 01.06.2005 and the signatures are forged and fabricated in the name of the appellant. The respondent / plaintiff, Sh. Sunny Rawal V/s Sh. Shiv Charan Page 4 of 15 however, filed a false and frivolous reply to the said application. The ld. Trial Court of Sh. Sanjay Sharma, JSCCcumASCJcum Guardian Judge, West Delhi, vide order dated 01.02.2011 dismissed the said applications of the appellant / defendant in the suit. The appellant / defendant, thus, aggrieved of the impugned order dated 01.02.2011, prefer the present appeal before this court and the same is being assailed on the following grounds :
a) That the ld. Trial Court has passed the impugned order against the facts, law and documents on record and the same is based upon conjectures and surmises, hence, the same needs to be setaside.
b) That the ld. Trial Court passed the impugned order erroneously on the face of it without taking into consider ation the fact that no summons or notice from the ld. Trial Court was ever served upon the appellant erroneously.
The summons, as alleged, shown to have been received by the appellant's sister Nancy Rawal are only an act of fraud and manipulation of the respondent as the appellant's sister never received any summons at all and her signatures are forged and fabricated on the summons. Thus, in the absence of the service of Sh. Sunny Rawal V/s Sh. Shiv Charan Page 5 of 15 summons, the appellant's rights were curtailed to defend and contest a false and frivolous suit and in case he had been given an opportunity to contest the suit, same would have been definitely dismissed with costs. Therefore, the impugned order has been passed in mechanical manner without giving proper consideration and application of mind.
c) That the ld. Trial Court has grossly erred in passing the impugned order that the service was effected on the sister of the appellant through processserver and regd. AD without taking into consideration that no summons were ever been received by the appellant's sister. It is highly improbably that the summons, sent through the process server and through registered post, were received by the same person i.e.appellant's sister and not by the appellant. This only shows the manipulation of the respondent in connivance with the processserver and local postman. Hence, the said manipulated and fabricated service as shown upon the appellant's sister cannot be accepted and treated as service upon the appellant.
d) That the ld. Trial Court also grossly erred in not taking Sh. Sunny Rawal V/s Sh. Shiv Charan Page 6 of 15 into consideration that as per the own case of the respondent, he was an employee of the appellant and it is highly improbable that the employer would make such request to his employee to advance him a loan of Rs.40,000/ and then the employee would take the money from third person and give it to his employer. Infact the respondent had never been in employment of the appellant nor appellant was ever in need of any money nor he took any money from the respondent or from any alleged third person. The respondent has fraudulently forged and fabricated the alleged receipt cum undertaking which even does not bear the signatures of the appellant. The appellant is a semiliterate person and he does not know English language and never signed in English while the alleged document, as produced by the respondent, bears the signatures in English language. Hence, the suit was required to be put for trial to adjudi cate upon the same on merits.
e) That the ld. Trial Court also grossly erred in neither discussing nor even mentioning the oral arguments as addressed by the counsel for the appellant. It was Sh. Sunny Rawal V/s Sh. Shiv Charan Page 7 of 15 submitted that the respondent is only a rickshaw puller and it is highly unbelievable that the appellant would approach him for a loan of Rs.40,000/ and the respondent would seek the financial assistance from the third person Ramji Gupta and after taking the said amount, he gave the same to the appellant.
f) The ld. Trial Court further grossly erred in passing impugned order without application of judicial mind as from going through the alleged receipt dated 01.06.2005 and the alleged undertaking dated 30.05.2005, it has been stated that the alleged loan of Rs.40,000/ was given by the said third person Ramji Gupta to the appellant and the respondent stood as surety / guarantor. Even on the alleged undertaking dated 30.05.2005, there are no signatures of the appellant. Therefore, admittedly the respondent did not advance any loan amount to the appellant and as such the respondent has no right to recover from the appellant and the right, if any, accrued to recover the amount was of the said third person Ramji Gupta. Even otherwise, the respondent has not filed any document to show that he was authorized Sh. Sunny Rawal V/s Sh. Shiv Charan Page 8 of 15 and empowered by said Ramji Gupta to recover the alleged amount from the appellant.
g) The ld. Trial Court further failed to appreciate and take into consideration that the alleged documents i.e. under taking dated 30.05.2005 and receipt dated 01.06.2005 are self contradictory to each other as in the alleged under taking dated 30.05.2005, it has been alleged that the alleged amount of Rs.40,000/ was not returned by the appellant to Ramji Gupta since 21/2 years, which means that the alleged amount was given 21/2 years prior to 30.05.2005. In contrary, the alleged receipt dated 01.06.2005 shows that the alleged amount of Rs.40,000/ was received by the appellant on 01.06.2005 from Ramji Gupta. Thus, both these documents are selfcontradictory. If the reliance is placed upon alleged undertaking dated 30.05.2005, then the suit itself was barred by limitation as the same was filed on 17.05.2007.
h) That the ld. Trial Court further grossly erred in making observation that the application for settingaside exparte decree has been filed without explanation of delay. It was submitted by the appellant in the application for Sh. Sunny Rawal V/s Sh. Shiv Charan Page 9 of 15 condonation of delay that on 02.03.2010 his mother has informed him about the visit of Bailiff and on 04.03.2010 his counsel made inspection of the judicial file and then only the appellant came to know about the exparte decree. Although the Bailiff had visited on 09.12.2009 but due to old age and short memory, his mother could not inform him about that visit when he was out of station. Thus, sufficient cause and reason were given by the appellant for the delay in filing the application.
i) That the ld. Trial Court also failed to appreciate and take into consideration that in case the exparte judgment and decree is not setaside and the appellant is not allowed to contest and defend the false and frivolous suit of the respondent on merits, it will result into miscarriage of justice, irreparable loss and injury to the appellant. In view of the aforesaid facts and circumstances, it is therefore, prayed that this court may summon the Trial Court Record and the impugned order dated 01.02.2011 passed by ld. Trial Court of Sh. Sanjay Sharma, ld. JSCC GJ, West, Delhi, in suit No.732/08 Sh. Sunny Rawal V/s Sh. Shiv Charan Page 10 of 15 may be setaside and the application of the appellant under Order 9 Rule 13 read with Section 151 CPC and under Section 5 of the Limitation Act may be allowed and the appellant may be allowed to contest and defend the suit on merits, with costs throughout.
3. On the contrary, the ld. Counsel for the respondent / DH has submitted that the respondent / DH was employed with the appellant / JD and the appellant / JD showed his financial crises to the respondent / DH and requested him to arrange money from someone and accordingly, the respondent / DH borrowed Rs.40,000/ from one Ramji Gupta and given the same amount to appellant but the appellant / JD did not refund the same amount. The appellant / JD was served through his sister with the summon / notice of the ld. Trial Court and he did not appear before the ld. Trial Court intentionally and with malafide intention. In order to avoid the summon / notice, the appellant / JD kept on changing his address time and again. It is further submitted that even at present the appellant / JD was avoiding to deceive the Bailiff. When the Bailiff reached at the residence of the appellant / JD, the brother, sister and mother of the appellant / JD stated that he is not residing at the address, whereas he himself has given the same address in the Sh. Sunny Rawal V/s Sh. Shiv Charan Page 11 of 15 present appeal. He is playing hide and seek in order to mislead this court. The application of the appellant / JD under Order 9 Rule 13 CPC was dismissed by the ld. Trial Court and he has not challenged the same. The appeal is not maintainable as the appellant / JD has not paid court fee as required. The allegations of manipulation of service upon the sister of appellant / JD is unfounded and baseless. The dishonesty of appellant / JD is known to everybody in the locality that he is in the habit of taking loan but never paid back. It is further submitted that the appeal is misconceived, misdirected, ill motivated and bereft of merits and hence, is liable to the rejected. It is, therefore, prayed that the appeal being groundless and meritless may be dismissed.
4. I have heard ld. Counsel for the respondent and perused the material on record carefully including the ld. Trial Court record carefully. None has appeared on behalf of the appellant despite Court Notice.
5. Upon hearing arguments and on the perusal of the material on record including the ld. Trial Court record, this court is of the considered opinion that the present appeal filed against the impugned order dated 01.02.2011 of the court of Sh. Sanjay Sharma, Sh. Sunny Rawal V/s Sh. Shiv Charan Page 12 of 15 ld. JSCC/ASCJ/GuardianJudge (West), Tis Hazari Courts, Delhi, is liable to be dismissed as the perusal of the process attached with the main file reveals that the defendant has been duly served through her sister Ms. Nancy Rawal on 19.03.2008 and also duly served through RC dated 19.03.2008. There is no dispute to the effect that Ms. Nancy Rawal is not the sister of the appellant or she is not major. The appellant / defendant has been duly served as per the law as the service of summon to any adult member of the family of the defendant is deemed to be a proper service. The defendant has not appeared despite proper service and thereafter the defendant was proceeded against exparte by the ld. Trial Cout vide order dated 07.05.2008. Thereafter the ld. Trial Court has pronounced the judgment vide judgment dated 13.05.2009. The submissions made on behalf of the appellant / defendant that infact the mother of the appellant is a very aged lady having no good memory, has received the summon and has forgotten to inform the appellant regarding the service of the summon of the suit, is not convincing and even factually incorrect as the summon has been received by the sister of the appellant / defendant i.e. Ms. Nancy Rawal, who is an adult member of the family of the appellant. The submission made on behalf of the appellant that the respondent / plaintiff has manipulated Sh. Sunny Rawal V/s Sh. Shiv Charan Page 13 of 15 the service through the processserver and through local postman is also not convincing as seeing the service of the appellant through the process as well as through RC is crystal clear service with clear signatures of Ms. Nancy Rawal, who is the sister of the appellant / defendant. Hence, the allegation of manipulation of service is unfounded.
6. The submission made on behalf of the appellant to the effect that the respondent / plaintiff was the employee of the appellant and how an employee would take money from a third person and gave it to his employer, is also not convincing as perusal of the ld. Trial Court record reveals that Ex. PW1/2 has been signed by 4 witnesses and Ex. PW2/A has also been signed by 4 witnesses, which leads to an inference of bonafide transaction. It is a common knowledge that the civil cases are decided on the theory of preponderance of probabilities i.e. what could have happened and what could not have happened in the given circumstances. Here, in this case, the respondent / DH was employed with the appellant / JD and the appellant / JD has shown his financial crises to the DH / respondent and requested him to arrange money from someone. Accordingly, the DH / respondent borrowed Rs.40,000/ from Sh. Sh. Sunny Rawal V/s Sh. Shiv Charan Page 14 of 15 Ramji Gupta and gave the same amount to the JD / appellant and DH / respondent stood as his surety but the JD / appellant has not refunded the amount to the DH / respondent. Such type of situations are not out of context in our society. Since the appellant / defendant has failed to satisfy the court that the summons were not duly served or he was prevented by any sufficient cause from appearing when the suit was called for hearing. The ld. Trial Court has rightly dismissed the application under Order IX Rule 13 of CPC alongwith application under Section 5 of the Limitation Act being devoid of any merits.
7. Consequently, the appeal is dismissed with no orders as to costs and the order dated 01.02.2011 passed in suit No. 732/08 by Sh. Sanjay Sharma, ld. JSCC/ASCJ/Guardian Judge (West), Tis Hazari Courts, Delhi,is uphold.
8. A copy of this judgment alongwith ld. Trial Court Record be sent back to the ld. Trial Court for necessary information and record.
9. The appeal file be consigned to Record Room.
Announced in Open Court ( R. B SINGH )
nd
on 02 September, 2014 Additional District Judge01(West)
Delhi.
Sh. Sunny Rawal V/s Sh. Shiv Charan Page 15 of 15