Delhi District Court
Sh. Abhishek Aggarwal vs M/S Shreya Developwell (P) Ltd. & Others on 2 June, 2014
THE COURT OF SH. VINOD GOEL: DISTRICT & SESSIONS
JUDGE: SHAHDARA: KARKARDOOMA COURTS: DELHI.
M. No. 49/13 (in civil suit no. 52/13)
Sh. Abhishek Aggarwal
S/o Sh. Anil Aggarwal
R/o A-33, Prashant Vihar, Rohini,
Delhi-110085.
.....Plaintiff
Versus
M/s Shreya Developwell (P) Ltd. & Others
(Through its Chairman/M.D./Principal Officer)
124, AGCR Enclave,
Delhi-110092.
.....Defendant/applicant
Date of institution : 05.10.2013
Date of Arguments : 22.05.2014
Date of Order : 02.06.2014
Application on behalf of the defendant under Order
XXXVII Rule 4 r/w Order IX Rule 13 r/w Section 151
of Code of Civil Procedure, 1908.
Order
1.The defendant/applicant has filed an application u/o XXXVII Rule 4 r/w order IX Rule 13 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") for setting aside the judgment and decree dated 12.8.2013. It is alleged that after putting in their appearance, the office of the defendant/applicant company was sealed due to unavoidable circumstances and in the Page 1 of 5 intervening period summons for judgment were served by affixation at the premises of the defendant/applicant. Subsequently, Sh. Sanjiv Aggarwal, husband of Smt. Alka Aggarwal and relative of Sh. Abhishek Aggarwal contacted its AR and told him about passing of the decree in the suit. The defendant/applicant never received any summons for judgment at the given address. For this reason, the defendant/applicant seeks setting aside of the said judgment and decree dated 12.8.2013.
2. In his reply, the plaintiff pleaded that the defendant/applicant was served with the summons for judgment u/o XXXVII CPC on prescribed format at the given address filed by the defendant company at the time of putting in its appearance and if there was any change in their address, they should have filed the same.
3. Despite opportunity, the defendant/applicant did not turn up to address the arguments. I have heard Ld. Counsel for the plaintiff and very carefully perused the material available on the record.
4. The plaintiff has filed a suit for recovery of Rs.7,08,577/- u/o XXXVII CPC on account of dishonour of 3 cheques bearing numbers 024751, 024752 and 024758 all dated 15.12.2011 for Rs.5,52,855/-, Rs.43,895/- and Rs.1,11,827 respectively. The defendant/applicant has put in its appearance on 20.4.2013 and despite service of the summons for judgment u/o XXXVII CPC at the given address on 19.7.2013, the defendant/applicant did not file any leave to defend within the prescribed period of 10 days from the date of service of Page 2 of 5 such summons.
5. To appreciate the arguments Ld. Counsel for the plaintiff, it is necessary to advert to Order XXXVII Rule 4 CPC which reads as under :-
"4. Power to set aside decree - After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit."
6. A perusal of the provision indicates that it is not enough for the defendant to show the special circumstances which prevented him from appearing or applying for leave to defend but he has also to justify by affidavit or otherwise the facts which entitled him to defend the suit.
7. This provision has come up for interpretation before the Hon'ble Supreme Court in Rajni Kumar vs. Suresh Kumar Malhotra and another AIR 2003 SC 1322 and it was held that it is not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise the facts which would entitle him to leave to defend the suit. In this regard reference can be made Page 3 of 5 to the latest judgment of our own Hon'ble High Court in Rajiv Chugh vs. Gurpreet Singh 2012 (4) Recent Civil Reports 521. Since there is express provision for setting aside a decree u/o XXXVII CPC, there is no scope to resort to S.151 of CPC for setting aside such a decree. This is so held by Hon'ble Supreme Court in Ramkarandas Radhavallabh vs. Bhagwandas Dwarkadas AIR 1965 SC 1144. Similarly provisions u/o IX Rule 13 CPC do not apply were a decree is passed u/o XXXVII CPC as Order XXXVII Rule 4 CPC is a self contained order which provides a procedure to be followed if defendant wishes to have a decree passed in summary suit set aside. This is so held by Hon'ble Bombay High Court in P.N. Films Ltd. and another vs. Overseas Films Corporation Ltd. AIR 1958 Bom 10.
8. Now turning to the case in hand, it is a case where pursuant to the service of summons for appearance on the proscribed format u/o XXXVII CPC, the defendant/applicant company has given its address as "M/s Shreya Developwell, 124, AGCR Enclave, Delhi-110092" on 20.4.2013. The defendant/applicant has avoided the service of summons for judgment which were sent to them and it was reported that the premises was found locked and the officers of the company visit 2-3 times a month and ultimately the defendant was served with the summons for judgment u/o XXXVII CPC on 19.7.2013 by affixation. Despite service of the summons for judgment u/o XXXVII CPC, the defendant/applicant did not file any application for leave to Page 4 of 5 defend and the suit of the plaintiff was decreed against it on 12.8.2013. If the premises, where the defendant/applicant company was having its office, was sealed by an order of any authority, they should have immediately filed an application before this court for change of their address which they miserably failed. Moreover, in the application in hand, the defendant/applicant company has not pleaded any ground for grant of leave to defend as prescribed u/o XXXVII Rule 4 CPC and as held by the Hon'ble Supreme Court in Rajni Kumar's case (supra). Therefore, the application filed by the defendant/applicant is devoid of any merit and the same is hereby dismissed with no order as to cost. File be consigned to record room.
Announced in open court (Vinod Goel)
on 2nd June, 2014 District & Sessions Judge
Shahdara/KKD Courts, Delhi.
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