Delhi District Court
Mirc Electronics Ltd vs Sanjay Goel on 7 May, 2014
Page No. 1 of 5
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
Suit No.471/13/10
MIRC Electronics Ltd.
Having its concerned office at
A19, BI Mohan Cooperative Industrial Area,
Mathura Road, Badarpur, New Delhi44.
Through Sh. Ajay Baluja,
Senior Executive (Legal)
Having its Regd. Office at
GI, MIDC, ONIDA House,
Mahakali Caves Road,
Andheri (East), Mumbai400093.
................... Plaintiff
Vs.
Sanjay Goel
Prop. of M/s I.G. Sales Corporation,
133, Neb Sarai, Main Road,
New Delhi.
Second address:
R/o 180/1, Neb Sarai,
New Delhi110068.
................... Defendant
Suit for Recovery of Rs.16,90,427/ (Rupees Sixteen Lacs Ninety
Thousand Four Hundred Twenty Seven only)
ORDER:
1. Vide this order I shall dispose of the application of defendant moved on 06.08.2013 U/O.9 R.7 CPC r/w Sec.151 CPC for setting aside ex parte order dated 17.01.2012.
MIRC Electronics Ltd. Vs. Sanjay Goel CS No.471/13/10 Page No. 2 of 5
2. It is submitted in this application that the defendant had started a business in the name and style of M/s I.G. Sales Corporation at 133, Main Road, Neb Sarai, New Delhi where he was residing also and that during the year 20082009, he suffered massive loss in his business as a result of which his relationship with his family members also got ruined and he was constrained to reside separately from his brother and other family members. It is further submitted that he had given many cheques to other persons during his business transactions which were got dishonoured and on 16.07.2013, when he visited the abovesaid address, he came to know from the neighbours that some Process Server had come with some notice issued against him by the Court of Sh. Vikrant Vaid, Ld. MM, Saket Court and that when he approached the said Court, he came to know that a case U/Sec.138 N.I. Act was filed against him by the present plaintiff and process U/Sec.82 Cr.P.C. were already issued against him and that there he also came to know about the pendency of the present suit. He has prayed for setting aside the ex parte order dated 17.01.2012 on the ground that he was not served with the summons of the present case and was not having any knowledge about this case.
3. In reply to this application, the plaintiff has submitted that the defendant was served with summons by way of registered AD as well as summons through Process Server but despite service he did not appear and was proceeded against exparte. It is further stated MIRC Electronics Ltd. Vs. Sanjay Goel CS No.471/13/10 Page No. 3 of 5 that the story mentioned by the defendant in the abovesaid application is a concocted story as he has ill motive to delay the proceedings of the case and to harass the plaintiff by not making payment of his money.
4. I have heard the arguments on this application from counsel Sh. B. K. Vashishth for plaintiff and counsel Sh. Shivaji Shukla for defendant and perused the record.
5. The case of the defendant is that he was never served with the summons in the present case as he was not residing at the address given in the plaint. But the plaintiff has stated in para 1 of preliminary objections of his reply to the application under consideration that the defendant was served with summons by way of registered AD as well through Process Server but he did not appear despite receiving of summons. However, on perusal of record it is revealed that the said averment of the plaintiff is absolutely false. The summons by way of registered post as well as by way of ordinary mode were issued a number of times against the defendant and in all the reports given by the Process Servers it has been mentioned that the defendant had left the address mentioned on the summons. The summons by way of registered post were received back unserved with the report "refused". The postman has simply written his report as "refused" and has not clarified as to which particular person had refused to accept the summons. The counsel for defendant has MIRC Electronics Ltd. Vs. Sanjay Goel CS No.471/13/10 Page No. 4 of 5 submitted that after suffering huge losses in his business and deterioration of his relations with his brother and other family members, the defendant was constrained to live separately from them and thus he left the address mentioned in the plaint in the year 2009. He has further submitted that the defendant's brother or any other family member never told him about the summons of this case as he was not on talking terms with them and that the defendant himself had never refused to accept the summons as he was never present at the given address after he left in 2009 and thus, he had no occasion to refuse the same. I find some force in his contention as all the reports of the Process Servers also state that the defendant had left the said address one year back or so. However, the counsel for plaintiff has vehemently argued that the story of the defendant is concocted story and that he had neither appeared in the present suit nor in criminal complaint case filed by the plaintiff against him U/Sec.138 N.I. Act in the Court of Sh. Vikrant Vaid, Ld. MM despite issuance of summons, bailable warrants and NBWs a number of times and that he had appeared only when process U/Sec.82 Cr.P.C. were issued against him. There appears some substance in the contention of counsel for plaintiff also because neither the defendant has mentioned the name of the neighbour from whom he got the information about the Process Server coming with the notice of the Court of Sh. Vikrant Vaid, Ld. MM nor he has got filed affidavit from him in this regard. It is also difficult to believe MIRC Electronics Ltd. Vs. Sanjay Goel CS No.471/13/10 Page No. 5 of 5 that it was a mere coincident that he had visited the said address only when the process U/Sec.82 Cr.P.C. were issued by the above said Court but never prior to that. However, as per the record he has not been properly served with summons of the present case and keeping in view the abovesaid facts & circumstances as well as the interests of justice, this Court is of the considered opinion that interests of justice would be sufficiently served if the present application is allowed subject to payment of cost. Hence, this application is allowed subject to cost of Rs.2,000/ to be paid to the plaintiff.
(Announced in open
Court on 07.05.2014) (Navita Kumari Bagha)
ADJ01, South District,
Saket Courts, New Delhi
MIRC Electronics Ltd. Vs. Sanjay Goel
CS No.471/13/10