Delhi High Court - Orders
Bdh Dye Chem Pvt. Ltd vs M/S S.S.Hosiery on 24 August, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 852/2022 & CM APPL. 36768/2022
BDH DYE CHEM PVT. LTD. ..... Petitioner
Through: Ms. Kajal Chanra, Mr. Divye
Puri and Ms. Sakshi Anand, Advs.
versus
M/S S.S.HOSIERY ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 24.08.2022
1. The impugned order dated 11th July 2022, passed by the learned District Judge (Commercial Court) ("the learned Commercial Court") in CS (Comm) 4701/2022 (BDH Dye Chem Pvt. Ltd. v. M/s S.S. Hosiery), instituted by the petitioner as a summary suit under Order 37 of the Code of Civil Procedure, 1908("CPC"), reads thus:
"CS (Comm) No. 4701-21 BDH Dye Chern Pvt. Ltd. Vs. M/s S.S. Hosiery 11.07.2022 Present:- Sh. Divye Puri, Ld. Counsel for plaintiff.
None for defendant.
Summons sent to defendant through registered post at second address received back unserved with the remarks 'address not traceable'. RC of third address received back undelivered whereas summons sent to defendant through ordinary process have not been received back. Summons sent through WhatsApp has been received with the report that there is two blue tick and through e-mail same has been Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 852/2022 Page 1 of 4 Signing Date:25.08.2022 16:42:57 bounced, however, in my view, services through e-mail and WhatsApp is only additional modes of service and not substantive mode of service.
Pass over sought.
Put up at 12.30 p.m. (Sanjeev KumaiAggarwal) District Judge (Commercial Court)-01, Central, Tis Hazari Courts, Delhi/11.07.2022 At 12.40 PM Present:- Sh. Divye Puri, Ld. Counsel for plaintiff.
None for defendant.
Ld. Counsel for the plaintiff has filed an application under Order XXXVII Rule 2 (3) CPC for passing of decree on non-appearance of the defendant.
Arguments heard.
Ld. Counsel for the plaintiff submits that since defendant has been served through WhatsApp and e-mail, therefore, same belong to the service of the defendant.
I have heard the submissions and gone through the records. In my view, since summons sent to the defendant through ordinary process has not been received back whereas summons sent through RC has been received undelivered at second address and ·even third address. In my view, service through e-mail and WhatsApp is only additional mode of service along with normal summons through process server/Registered Post. Hence, in my view, defendant has not been served properly. Therefore, no decree can be passed in favour of the plaintiff. Hence, the application stands dismissed.
Let summons of the suit under Form No. 4 in Appendix B be issued to the defendant through concerned Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 852/2022 Page 2 of 4 Signing Date:25.08.2022 16:42:57 District Judge in prescribed format under Order XXXVII CPC on filing of PF on 27.08.2022.
Summons be given dasti, as prayed.
(Sanjeev KumaiAggarwal) District Judge (Commercial Court)-01, Central, Tis Hazari Courts, Delhi/11.07.2022"
2. Ms. Kajal Chandra, learned Counsel for the petitioner, points out that, in fact, of the three addresses provided in the memo of parties filed with the plaint in CS (Comm) No. 4701-21, summons, by registered post, were actually received at the second and third addresses provided in the memo of parties filed with plaint on 12th February 2022 (at the Surajpur address), 15th February 2022 (at the Tronica City address) and again on 13th April 2022 (at the Tronica City address).
3. In view thereof, she submits that there was no justification for the learned Commercial Court taking a view that due service of summons in the suit on the respondent had not taken place.
4. The impugned order does not indicate that the learned Commercial Court has noted the fact of the aforesaid instances of service having been apparently effected on the respondent.
5. In view thereof, the impugned order is quashed and set aside. The matter is reported to be listed next before the learned Commercial Court on 27th August 2022. The learned Commercial Court is requested to take a fresh decision on the aspect of service of the suit Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 852/2022 Page 3 of 4 Signing Date:25.08.2022 16:42:57 on the respondent in view of the aforesaid instances of service, to which Ms. Kajal Chandra has drawn attention.
6. In order for the learned Commercial Court to be aware of the instances of service to which this order alludes, the petitioner would be at liberty to produce, before the learned Commercial Court, a copy of the present petition with the annexures thereto on the next date.
7. The petition is accordingly allowed to the aforesaid extent, with no order as to costs.
8. A copy of this order be given dasti to learned Counsel for the petitioner under the signature of the Court Master.
C. HARI SHANKAR, J AUGUST 24, 2022 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CM(M) 852/2022 Page 4 of 4 Signing Date:25.08.2022 16:42:57