Delhi District Court
Non vs Indian Institute Of Planning & ... on 11 January, 2016
Page 1 of 12
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
M. No.06/14
M/s. Trail Blazer Tours India Pvt. Ltd.
1AD, Vandana Building,
11, Tolstoy Marg,
New Delhi110001
............. Nonapplicant/Plaintiff/DH
Vs.
Indian Institute of Planning & Management
Through Mr. Sandeep Ghosh
Chief Executive Officer
Level0, IIPM Campus,
Satbari, Chandan Haula,
Chattarpur Road,
New Delhi110074
............. Applicant/Defendant/JD
Application U/O.9 R.13 CPC for setting aside exparte decree
ORDER:
1. Vide this order, I shall dispose of the application of the applicant/defendant/JD (hereinafter referred to as 'defendant') filed on 06.03.2014 U/O.9 R.13 CPC for setting aside judgment/decree dated 18.03.2013 passed in Civil Suit No.178/12 titled as 'M/s. Trail Blazer Tours India Pvt. Ltd. Vs. Indian Institute of Planning & Management'.
2. The abovesaid suit bearing no.178/12 was filed by M/s. Trail M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 2 of 12 Blazer Tours India Pvt. Ltd. i.e. the nonapplicant/plaintiff/DH (hereinafter referred to as 'plaintiff') on 26.04.2012 against the defendant for recovery of Rs.11,04,453/ alongwith pendentelite and future interest which was decreed by the Ld. Predecessor Court vide exparte judgment dated 18.03.2013.
3. In the present application, the defendant has stated that it was never served with any summons at any point of time and therefore could not participate in the proceedings of the suit and an exparte decree dated 18.03.2013 was passed against it. It is further stated that the defendant came to know about the said exparte decree on 25.02.2014 when the Bailiff of the Court visited IIPM Campus, Satbari, Chandanhaula, New Delhi for attachment of movable assets. It is further stated that the abovesaid address is not the correct address of the defendant as the said property belongs to Centre for Vocational & Entrepreneurship Studies [earlier known as International Institute of Planning and Management Pvt. Ltd. (IIPM Pvt. Ltd.)]. It is further stated that the office of the defendant is situated at Katwaria Sarai, New Delhi and that probably due to confusion of 'IIPM' and 'IIPM Pvt. Ltd.', the plaintiff was serving the summons on IIPM Campus Satbari, New Delhi. It is further stated that the suit was filed by the plaintiff against the defendant through its CEO Mr. Sandeep Ghosh, whereas the IIPM is a society M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 3 of 12 registered under the Society Registration Act and Mr. Sandeep Ghosh is not its CEO. On these grounds, the defendant has prayed for setting aside the exparte decree dated 18.03.2013.
4. In reply to the said application, the plaintiff has stated that the application for setting aside exparte decree is an abuse of the process of law and is liable to be dismissed with costs as the defendant was duly served with the summons of the suit and that only after considering the service report, the Ld. Predecessor of this Court had proceeded the matter exparte against the defendant. It is further stated that the application for setting aside exparte decree was moved by the defendant when the Warrants of Attachment were sent at the same address i.e. IIPM Campus, Satbari, Chandanhaula where the summons of the suit were served and thus the contention of the defendant that it had come to know about the decree only after the issuance of Warrants of Attachment is false and misleading. It is further stated that all the companies i.e. the defendant, IIPM Pvt. Ltd., Planman Motion Pictures, Planman Consulting India Pvt. Ltd. and Planman Technologies Pvt. Ltd have the common promoters belonging to the same group associated with each other and are being also represented by common officials and that Mr. Sandeep Ghosh had been dealing with the plaintiff in the capacity of Administrator of M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 4 of 12 these companies and has also been settling the dues with the plaintiff and that at no point of time any objection in this regard has ever been raised by the defendant. It is further stated that the official address of the defendant has been published on its official website as 'IIPM Campus, Satbari, Chandan Haula, Chattarpur Road, New Delhi' where the summons of the suit were served and therefore it is false that the said address does not belong to the defendant.
5. Rejoinder to the reply of plaintiff was also filed by the defendant wherein the averments of the plaintiff were denied and the contents of the application were reiterated and reaffirmed.
6. I have heard the arguments from Counsel Sh. Ratneshwar Das for defendant and counsel Sh. Ajay Tejpal for plaintiff and perused the record.
7. As per O.9 R.13 CPC, an exparte decree can be set aside if the defendant satisfies the Court that the summons were not duly served upon him or that he was prevented by any sufficient cause from appearing before the Court when the matter was called for hearing. The defendant, in the application under consideration, has simply stated that it was never served with any summons. But the perusal of record has revealed that the defendant was duly served 'twice' with summons, sent through process server and the M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 5 of 12 stamp of the defendant was also put on the summons alongwith the signature of the official at the time of service.
8. It has been held by Hon'ble High Court of Delhi in Chander Pal Vs. BRM Lease and Credit Ltd. & Anr., C.R.P. 80/2011, decided on 23.08.2012 "As per proviso to Order 9 Rule 13 CPC, the Court shall not set aside the said decree on mere irregularity, if any, in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the Court. The legislature in his wisdom, made the proviso mandatory in nature. Thus, it is not permissible for the Court to allow the application in utter disregard of the terms and conditions incorporated in the said proviso.
It is also settled law that mere on the bald statement of the defendant that he had not received or refused the summons, the Court shall not set aside the exparte decree and judgment. In the case of summons admittedly addressed at the proper address, sent by ordinary as also by registered post, there was presumption of its service under section 27 of General Clauses Act 1897 as also under section 114 illustration
(f) of Indian Evidence Act. Though, the presumption was rebuttable, but, a bald statement to that effect was not enough to rebut the presumption."
M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 6 of 12
9. Thus the exparte decree could not be set aside even on the ground of irregularity of service and that there is presumption of due service unless it is contended and proved that the address of the defendant on the summons was not its correct address. Mere bald statement of nonservice would not serve any purpose. In the present case, the summons were served upon the defendant at the first time on 05.07.2012 when the process server had reached the address "IIPM Campus, Satbari, Chandan Haula, Chhattarpur Road, New Delhi74", where he met with one Hari Singh (Reception Clerk) who told him that Sandeep Ghosh was out of station and he (Hari Singh) received the summons after talking to Sandeep Ghosh on phone. The said person had not only put his signature on the summons towards acknowledgment of receipt of summons, but even the stamp of the defendant (containing the words 'IIPM Satbari, New Delhi') was also put on it. The defendant was served second time on 25.08.2012 when the process server met one official who told his name as 'Prevrenjit' and his designation as 'manager' and received the summons after putting his signature on the copy with the process server. The defendant, in the entire application under consideration, has not stated even a single word denying such service through the abovenamed persons. It has also not denied that the said persons are/were not working with it. It has also not denied its stamp put on the M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 7 of 12 summons at the time of service. So far as the correctness of address is concerned, the plaintiff had categorically stated in para no.6 (Preliminary Objections) of its reply to application U/O.9 R.13 CPC that the defendant has published its official address on its official website as "IIPM Campus, Satbari, Chandan Haula, Chattarpur Road, New Delhi74", and it reply to the said para, the defendant, in its Rejoinder, has not even denied the said fact. The plaintiff has also filed a copy of the said webpage and the defendant has not denied the same to be its webpage. Thus from the aforesaid, it is clear that the address mentioned in the suit was the address of the defendant at the relevant time and the defendant was duly served with the summons twice. It has been held by Hon'ble Supreme Court in Sunil Poddar & Ors. Vs. Union Bank of India, AIR 2008 SC 1006, "The legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 8 of 12 convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiffs claim, he cannot put forward a ground of nonservice of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code."
10. Thus, as per this caselaw, the exparte decree cannot be set aside merely on the ground of irregularity of service if the defendant otherwise had knowledge of the proceedings of the suit. But, here in the present case, no irregularity of service of summons is involved; rather the defendant was duly served with the summons as per the record. Thus, the defendant, being aware of the suit, could have appeared and answered the claim of the plaintiff when the suit was pending. Once, it failed to avail that opportunity and exparte decree is passed, it cannot later on seek setting aside of the said exparte decree merely on the bald assertion of nonservice of summons. It has been held by Hon'ble Delhi High Court in New India Assurance Co. Ltd. Vs. Sh. Preet Pal Singh, 2010 (173) DLT 113, "No mercy can be shown to such respondent who deliberately defy court orders and do not appear in the court thinking and presuming that any order passed by the court can be got set aside on making lame excuses. It is because of this attitude that cases in this country M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 9 of 12 do not get decided for years together and the get struck up at service stage for years together since the respondent defy court summons with immunity and the courts set aside exparte orders in a casual manner."
11. Similarly, the defendant, in the present case, also does not deserve any mercy as it has misused the process of the Court. It is quite strange that when the summons of the suit are sent to the defendant, it does not bother to appear before the Court despite service of summons and takes the plea that the address, where summons were served, does not belong to it, but when warrants of attachment are sent at the same address, the defendant all of a sudden becomes aware of the proceedings and stalls the attachment proceedings!! It is pertinent to mention here that when the Bailiff reached at "Indian Institute of Planning and Management, Level0, IIPM Campus, Satbari, Chandan Haula, Chattarpur Road, New Delhi" on 25.02.2014 for execution of warrant of attachment, one person namely Sukul Barua from Administration Department met who, after talking to Director Prasoon Majumdar and Sandeep Ghosh, gave a writing on the letterhead of the defendant, the contents of which are as follows: "Suit No.178/2012 Ex.69/2013 Dear Sir, Today date 25/02/14 court Bailiff with Nihaluddin AR of M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 10 of 12 DH (Trail blaze tours India pvt. Ltd.) have come to our office IIPM Chattarpur, Satbari, Chandan Haula, Chattarpur Road, New Delhi 110074 and Court Inderjeet Singh Additional Judge South district Saket Court New Delhi inform via warrant of attachment of movable property of Rs.1349524.13. I had gone through court paper and understood and informed my Director Mr. Prasoon Majumdar and Sandeep Ghosh and I respect this court order. We have to compile by the accounts th and by 5 of March 2014 we will settle."
12. It is pertinent to mention here that the said writing is also bearing the same stamp of the defendant which was put on the summons at the time of service of summons. Thus from the aforesaid analysis, it is clear that the address mentioned in the plaint was the correct address of the defendant and the defendant had not bothered to appear in the suit proceedings despite service of summons and hence, the defendant is not entitled to get the ex parte decree setaside. Under O.9 R.13 CPC, apart from the ground of nonservice of summons, the exparte decree can be set aside if the defendant satisfies the Court that he was prevented by any sufficient cause from appearing before the Court when the matter was called for hearing. But the defendant in the present case has failed to disclose any such cause. Hence the application of defendant filed U/O.9 R.13 CPC is required to be M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 11 of 12 dismissed. The application deserves dismissal on one more ground i.e. being barred by limitation. As per Article 123 of Limitation Act, period for filing application for setting aside exparte decree is 30 days from the date of decree or from the date of knowledge of the decree in case the summons was not duly served. Since in the present case the defendant was duly served with the summons, so, the limitation for filing application U/O.9 R. 13 CPC started from the date of decree i.e. 18.03.2013, whereas the application U/O.9 R.13 CPC was filed on 06.03.2014 which is clearly barred by limitation. The application is clear abuse of the process of law as firstly the defendant had defied the order of the Court by not appearing in suit proceedings despite service of summons and secondly, it moved the present application on totally false plea of nonservice of summons. Hence, the application of defendant U/O.9 R.13 CPC is dismissed with cost of Rs.10,000/ (Rupees Ten Thousand only) to be paid to the plaintiff. File be consigned to Record Room.
(Announced in open Court on 11.01.2016) (Navita Kumari Bagha) ADJ01, South District, Saket Courts, New Delhi M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management Page 12 of 12 M. No. 6/14 Trail Blazer Tours Vs. IIPM 11.01.2016 Present: None.
Vide separate order, application of defendant U/O.9 R.13 CPC is dismissed with cost of Rs.10,000/ (Rupees Ten Thousand only) to be paid to the plaintiff. File be consigned to Record Room.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
11.01.2016 (Renu) M. No.06/14 M/s. Trail Blazer Tours India Pvt. Ltd.
Vs. Indian Institute of Planning & Management