Delhi District Court
M/S Icici Bank Limited vs Kingel India Tour & Travels Ltd on 28 March, 2014
IN THE COURT OF MS. R.KIRAN NATH,
DISTRICT & SESSIONS JUDGE (NORTH),
ROHINI DISTRICT COURTS: DELHI
M No. 58/2013
M/s ICICI Bank Limited,
having its Registered Office at :
Landmark, Race Course Circle,
Vadodara - 390007.
Having its Branch Office at :
Plot No.7, S.D. Tower,
Sector-08, Rohini,
New Delhi - 110085
Through its Authorized Representative
Mr. Anil Panchal
.... Applicant/Plaintiff
VERSUS
1. Kingel India Tour & Travels Ltd.
Borrower
213, 2nd Floor, Vasant Plaza
Munirka, Delhi- 110067
2. Anoop Kumar Buttan
Co-Borrower
184, Safdar Jung Enclave,
DDA Janta Qtr.
New Delhi - 110017. .... Respondents/Defendants
Date when arguments were heard: 28.03.2014
Date of Judgment: 28.03.2014
O R D E R :-
1. This order shall dispose of an application u/o 37 R 4 CPC for setting aside order and judgment dated 25.02.2011.
2. In brief, the facts material for consideration of this application are that M/s ICICI Bank Ltd, (respondent herein) had filed a M No. 58/2013 ICICI Bank Vs Kingel India Page No. 1 of 5 suit for recovery of money against the present applicants/defendants M/s Kingel India Tour Pvt. Ltd. and Sh. Anoop Kumar Buttan, co-borrower, u/o 37 CPC for recovery of Rs.6,91,621.02/- on the premise that a loan of Rs.5,60,000/- was granted to M/s Kingel India Tour & Travels Pvt. Ltd. (hereinafter called M/s KIT) on 28.02.2007 where Sh. Anoop Kumar Buttan was the co-borrower and loan agreement alongwith other documents were executed. Thereafter, M/s KIT failed to maintain the financial discipline and as per the accounts, a loan of Rs.6,91,621.02/- became due and hence the suit was filed u/o 37 CPC.
3. The summons were sent to the defendants M/s KIT & anr. but could not be served by ordinary process as the report is received as 'left' and thereafter, both the borrower and co-borrower could be served only by way of substituted service i.e. by way of publication in the newspaper 'Statesman' dated 24.01.2011. Even then, the borrower and co-borrower failed to enter their appearance within the prescribed period. Vide order dated 25.02.2011, my Ld. Predecessor decreed the suit for the said amount against the borrower M/s KIT as also the co-borrower Sh. Anoop Kumar Buttan.
4. Execution proceedings were filed by the DH on 17.08.2012. The notice was issued and counsel for JD no.2 filed his vakalatnama on 23.08.2013. The notice sent to JD no.1 was received back unserved with the report of 'left'. Thereafter, on 18.09.2013, JD no.2 the present applicant i.e. co-borrower filed this application u/o 37 R 4 CPC for setting aside of judgment and decree dated 25.02.2011.
5. Ld. counsel for the applicant/co-borrower has stated that decree and judgment needs to be set aside as the service of the defendants in that case was bad and was not a proper service in M No. 58/2013 ICICI Bank Vs Kingel India Page No. 2 of 5 the eyes of law. Notice published in the newspaper seen. The notice enumerates that the lender M/s ICICI Bank has filed the suit u/o 37 CPC against the borrowers M/s KIT & Anoop Kumar Buttan and that they were required to enter their appearance within ten days of the service i.e. publication, in default of which the plaintiff would be entitled to obtain a decree against the borrowers. Notice also gives details that in case they do not enter appearance within ten days, the plaintiff would serve a summon of judgment and they were also entitled to move the court for leave to defend the suit and if they are able to satisfy the court that they had a defence to the suit on merits, they could be allowed to defend the suit.
6. Counsel for the applicant has argued that notice was simple notices and plaint and documents with the said notice were not published and hence, it was not a proper service. In support of this contention, counsel for applicant has placed before me the judgment of Hon'ble High of Delhi in the case 'Hans Raj Vs Lakhi Ram', AIR 2005 Delhi 87, wherein it was held that u/o 37 R 4 CPC it is provided that plaintiff shall serve the copy of the plaint and annexures to the defendant and where only the summons were published without publication of plaint and documents, the service was bad.
7. It is seen that receiver order in this case was passed and the vehicle was re-possessed even before the summons came to be issued to the defendants in the prescribed format. The vehicle has been re-possessed from the principal borrower and at the time of re-possession of the vehicle, the copy of the order for appointment of receiver must have been received by the borrower. It is stated by counsel for applicant that driver of the borrower had M No. 58/2013 ICICI Bank Vs Kingel India Page No. 3 of 5 handed over the possession of the vehicle to the receiver. Even if that be so, the principal borrower was in the knowledge that the vehicle has been re-possessed by the lender M/s ICICI Bank. The said order was passed in this suit (for which this appeal has been filed) so it cannot be said that the borrower did not have the knowledge of the pendency of the suit.
8. That aside, it is also seen that when the summons were issued to the defendants, counsel for the brother of respondent no. 2 had appeared in the court and had informed that borrower was mentally disturbed and had left the house for unknown destination and is present whereabouts were not known. He further informed that the vehicle had been repossessed by the lender i.e. plaintiff company.
9. That aside, it is seen from the record that the summons sent to the defendant no. 1/borrower could not be served as it was reported that 'addressee has left the premises'. The lender could not have known when the borrower was changing his addresses. It is the duty of the borrower himself to inform the lender that they had changed their address but present borrowers did not do so. The risk in that case is that of the borrower. It cannot lie in his mouth to say that he could not defend himself properly because he was not properly served. He was in the knowledge of the pendency of the suit. The vehicle has been re-possessed and he must be in the knowledge, of the same being the co-borrower and Director of the principal borrower M/s KIT, that the proceedings were going on in the court in which the order for appointment of receiver was passed. But he chose not to find out as to what proceedings were going on in which the re-possession of vehicle was made.
10. I am of the opinion that appellant was very much in M No. 58/2013 ICICI Bank Vs Kingel India Page No. 4 of 5 knowledge of pendency of the suit; if he chose not to enter appearance, he did so at his own risk. I do not find that applicant has made out any such circumstances in which the order should be set aside. The application is, thus, dismissed. The file be consigned to the record room.
Announced in the open court on 28th March, 2014 (R.KIRAN NATH) DISTRICT & SESSIONS JUDGE (NORTH) ROHINI COURTS: DELHI. J M No. 58/2013 ICICI Bank Vs Kingel India Page No. 5 of 5 ICICI Bank Vs Kingel India M. No. 58/2013 28-03-2014 Present: None.
Vide separate order of the date, the application u/o 37 Rule 4 CPC for setting aside order and judgment dated 25-02-11 is dismissed.
File be consigned to record room.
(R.KIRAN NATH) DISTRICT & SESSIONS JUDGE (NORTH) ROHINI COURTS: DELHI. J M No. 58/2013 ICICI Bank Vs Kingel India Page No. 6 of 5