Delhi District Court
Amit Malhotra vs Ravinder Kumar Sehgal on 3 May, 2018
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
M. No. 21/2018
New No. 87/2018
Amit Malhotra .....Plaintiff/DH
Versus
Ravinder Kumar Sehgal .....Defendant/JD
ORDER
03.05.2018
1. By this order I shall dispose off two applications one filed under Section 5 of the Limitation Act seeking condonation of delay in filing the application under Order XXXVII Rule 4 read with Order IX Rule 13 CPC and the other filed under Order XXXVII Rule 4 read with Order IX Rule 13 and Section 151 of CPC filed on behalf of defendant / Judgment Debtor. The brief facts necessary for the disposal of the applications are as under:-
2. In the application filed under Section 5 of the Limitation Act, it is stated that an execution petition was filed in Suit No. 302/2017 on the basis of an ex-parte order/decree and Judgment dated 15.07.2017. The Judgment Debtor was served with the summons for execution in the third week of December 2017 and the son of the Judgment Debtor marked his first appearance before the Court on 03.01.2018 on behalf of the Judgment Debtor as the Judgment Debtor was out of station to look after his ailing mother. It is also stated that after getting back, the Judgment Debtor immediately contacted his Counsel and told him about the said show cause notice. The Counsel gave M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 1 of 9 him the assurance that he will take the necessary steps if required before the next date of hearing i.e. 29.01.2018 but he did not contact the applicant / Judgment Debtor and also not took any required steps as per provisions of law.
3. It is also stated that after not getting a satisfactory response from the Counsel, the Judgment Debtor referred to new Counsel about conducting of the present case just before 29.01.2018 and the newly engaged Counsel marked his appearance before the Court on 29.01.2018 and later on applied for the certified copies of the trial Court record and received the same on 20.02.2018 and there is delay of 30 days, which was neither willful nor intentional but due to bonafide reasons. It is prayed that delay of 30 days in filing the application under Order 37 Rule 4 CPC read with Order IX Rule 13 CPC be condoned.
4. Reply was filed by the plaintiff / DH wherein it is denied that JD has gained the knowledge when he had been served with the summons for execution in the 3 rd week of December, 2017 and that son of the JD marked his appearance before the Court on 03.01.2018 but it is denied that JD was out of station to look after his ailing mother. It is stated that JD was duly personally served with the notice to show cause in Execution No. 1199/2017 by ordinary process on 06.12.2017 however the JD has submitted in the application that he gained the knowledge in the third week of December, 2017 which is contradictory statement of JD and shows that the pleas / grounds raised by the JD are false and not bonafide one. The applicant / JD failed to mention the name and details of his Counsel to whom he contacted and told him about the said show cause notice. It is also stated that applicant JD failed to file the photocopy of slip for obtaining M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 2 of 9 certified copy of the trial Court record. It is stated that JD has not stated any special circumstances as required under law for condoning the delay. It is prayed that the application be dismissed with exemplary costs.
5. Now coming to the application under Order XXXVII Rule 4 read with Order IX Rule 12 and Section 151 CPC, it is stated that the captioned matter has been disposed off by this Court as Exparte on 15.07.2017 and the execution petition has been initiated after passing of the order dated 15.07.2017.
6. It is stated that the Judgment Debtor has never been served in the Civil Suit No. 302/17 and moreover only gained the knowledge when he been served with the summons for execution in the third week of December 2017 and the son of the Judgment Debtor marked his first appearance before the Court on 03.01.2018 on behalf of the Judgment Debtor as the Judgment Debtor was out of station to look after his ailing mother.
7. It is stated that execution was filed in Suit No. 302/2017, the suit for recovery under Order XXXVII CPC on the basis of an ex-parte order/decree and judgment dated 15.07.2017 for an amount of Rs. 5,60,000/- with interest @ 12% p.a. from the date of filing of the suit till the realization alongwith the cost, passed by this Court against the Judgment Debtor. It is also stated that on the basis of the order/decree and Judgment dated 15.07.2017, the decree sheet was prepared.
8. It is stated that Judgment Debotr has never been duly served with any notices or summons of the suit No. 302/17 instituted and filed against him by the Decree Holder and also M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 3 of 9 never been supplied or served with the copy of the decree passed against him and in favour of the decree holder by the Court. The Judgment Debtor came to know about the Civil Suit No. 302/17 which was decided ex-parte on 15.07.2017 when the show cause notice was served to him in the third week of December 2017 about the execution petition No. 1199/17. It is also stated that before third week of December-2017 the Judgment Debtor was not at all aware about the proceedings initiated against him by the Decree Holder or the decree passed against him by the court in Suit No. 302/17.
9. It is also stated that Judgment Debtor was shocked to get the notice of the execution No. 1199/17 which was served on him as he was not at all aware about the pendency of the same and moreover he has never been served with any summons of the Civil Suit No. 302/17 which was decide ex-parte. After getting about the knowledge of the same, the Judgment Debtor came before the Court.
10. It is prayed that ex-parte order dated 15.07.2017 passed against the Judgment Debotr be set aside and the case be restored to its original number.
11. The DH / plaintiff filed reply to the application and submitted that in the main suit, the JD / defendant was personally served with the summons for appearance under Order 37(2) CPC against the JD by way of oridinary process on 27.03.2017, so the plea that JD was never served is highly unacceptable, unlawful and against the record. Moreover, the JD is still residing at the same address which was mentioned in the main suit and also on the summons served on the JD in the suit and this plea taken by M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 4 of 9 the JD is sham, bogus and airy.
12. It is stated that JD is again making false statement, submissions and averments before the Court as the JD was duly personally served with the Notice to Show Cause in Execution No. 1199/17 by ordinary process on dated 06.12.2017, however, the JD has submitted in his application that he gained the knowledge of execution in the third week of December, 2017 which is again contradictory statement of JD and shows that the pleas taken, grounds raised by JD are false and are not a bonafide one. It is also stated that JD also failed to mentioned the alleged outstation place where he allegedly visited to look after his ailing mother, moreover the medicals of the mother of JD were also not placed on record by JD in support of his contentions.
13. It is stated all these objections, facts and circumstances stated above by the DH shows that the JD is a habitual liar and ha snot stated any special circumstances as required under Order 37 Rule 4 CPC. It is also stated that provisions of Order IX Rule 13 CPC are not applicable as the Decree / Order dated 15.07.2017 was not a ex-parte Decree / Order.
14. In parawise reply, the contents of the application have been denied and it is stated that JD was personally served with the summons for appearance issued under Order 37(2) CPC by way of ordinary process on 27.03.2017 and the Court has made observations with regard to the the service of summons for appearance on JD in the Judgment dated 15.07.2017. It is also stated that JD was served with the notice to show cause in the Execution No. 1199/2017 by ordinary process on dated M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 5 of 9 06.12.2017 however, the JD has submitted that he gained the knowledge of execution in the third week of December-2017. It is prayed that application of the JD be dismissed with exemplary costs.
15. I have heard Sh. M.S. Oberoi, Ld. Counsel for applicant / defendant / JD and Sh. Ritesh Oberoi, Ld. Counsel for plaintiff .
Decree Holder. I have also perused the record.
16. The defendant has filed application for condonation of delay and the ground taken is that in the 3 rd week of December summons of the execution petition was received by him and son appeared on 03.01.2018. The JD was stated to be out of station for looking after his ailing mother. He also explained that the engaged Counsel did not give him satisfactory response, therefore, he had engaged another Counsel for filing the application. In my opinion the applicant / defendant has shown sufficient ground for delay in filing the application under Order XXXVII Rule 4 read with Order IX Rule 13 CPC. Accordingly, I condone the delay of 30 days.
17. Now coming to the application filed under Order XXXVII Rule 4 read with Order IX Rule 13 CPC. The fundamental ground taken by the defendant is that he came to know about the Civil Suit and exparte decree dated 15.07.2017 when the Show Cause Notice was served upon him in the 3 rd week of December, 2017 of execution petition. The defendant further pleaded that he was never served with any summons of the civil suit and going to suffer irreparable injury if exparte decree is not set aside.
M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 6 of 918. In order to appreciate the ground for setting aside the exparte decree, I have gone through the record of the Civil Suit bearing No. 302/17. As per record, the suit under Order XXXVII CPC was filed by the plaintiff Amit Malhotra on 20.03.2017, summons were issued as per order XXXVII CPC for filing of appearance for 28.04.2017. As per report on the summon, same was personally served upon the defendant Sh. Ravinder Kumar Sehgal, which bears his signatures on the summon with date 27.03.2017. Accordingly, the Court proceeded as per law and it was held that defendant was duly served personally. During the course of arguments, the defendant was put the summon signed by him but he blatantly refused to recognize his signatures and denied. The Court has compared the signatures on the summon of the suit and the application and affidavit filed with the application under Order XXXVII Rule 4 CPC and condonation of delay application. The signatures prima facie appears to be of the same person. The capital 'R' is exactly the same with same curves and stroke on the summons as well as on the application. Even the signatures of defendant on the service of notice of execution petition are also of same style with the same kind of stroke and curves. In my opinion signatures on the summons with date of service 27.03.2017 is of the defendant. Now, he is refusing to identify, which is not believable. The plea of the defendant that he was not served with the summon is wrong, false and unbelievable. The defendant was duly served and well within the knowledge of pendency of suit and due to the reasons best known to him, he failed to put in appearance as per law to defend the civil suit.
19. Ld. Counsel for the plaintiff relied upon Judgment of the Hon'ble Supreme Court in case titled as Rajni Kumar Vs. M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 7 of 9 Suresh Kumar Malhotra & Anr - bearing Appeal (Civil) 2538 of 2003 decided on 28.03.2003 and contended that as per Order XXXVII Rule 4 CPC, the Court has to determine the question of facts of each case as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree. He pointed out that it was further held in the said judgment that it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 CPC. The defendant is not entitled to defend the suit unless he enters appearance within 10 days of service of summons either in person or by pleader and files an address for service of notices on him. In default, the plaintiff becomes entitled to a decree. He further pointed out that that defendant has to show special circumstances which prevented him from filing or applying for leave to defend, he has also to show by affidavit.
Now applying the principles of law laid down the Rajni Kumar's case (supra), the defendant has not pleaded any special circumstance which prevented him from putting in appearance. He has pleaded only the ground that he was never served with the summon, which is contrary to the Court record. Summon bears his signatures with date. In the application supported with affidavit, he has not pleaded any ground to defend the Order XXXVII Suit. In my considered opinion, the defendant failed to show any special circumstance or sufficient ground or plausible ground for not appearing after being duly served.
20. On the basis of above observation and discussion, the application for condonation of delay is allowed. However, the application filed under Order XXXVII Rule 4 CPC read with Section M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 8 of 9 IX Rule 13 CPC is dismissed. Consequently, the interim stay granted vide order dated 05.03.2018 is vacated.
File be consigned to Record Room.
Announced in the open court today on 3rd day of May, 2018 (Sanjay Kumar) Addl. District Judge-02 (West) Tis Hazari Courts, Delhi M87/18 Amit Malhotra Vs. Ravinder Kumar Sehgal Page 9 of 9