Delhi District Court
An Application Under Order 9 Rule 13 Read ... vs . on 21 November, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL. DISTRICT
JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
M - 43 of 2016
New No. Misc. DJ/158129/16
Shri Surinder Kumar Arora ...Decree Holder/Plaintif
Vs.
Jain Metal Components ...Judgment Debtor/Defendant
ORDER
21.11.2016
1. An application under Order 9 Rule 13 read with Section 151, 152 CPC filed by defendant M/s. Jain Metal Components in suit no. 65/2003 titled as 'Surinder Kumar Arora vs. Jain Metal Components' decreed ex-parte vide judgment dated 05.03.2004 of Sh. Prem Kumar, the then Ld. ADJ, Tis Hazari, Delhi.
2. In brief, it is stated that plaintiff has filed the above said suit against the defendant stating that defendant is a tenant and his tenancy having been terminated and sought possession with damages and mesne profit. It is stated that there is no landlord/tenant relationship between the parties. It is further stated that as per agreement dated 09.03.1989 executed between Sh. Surinder Kumar Aora and Sh. Manohar Lal Jain on behalf of defendant company, the plaintiff had agreed to provide a table space to the defendant to sell goods on commission basis. The Clauses/condition nos. 1, 3 and 8 have been highlighted.
M-43 of 2016 Page No.1/143. It is stated that the above said agreement dated 09.03.1989 never amended/reviewed and the defendant at the time of filing of the suit or even today and when learnt about the ex-parte decree was in possession of the suit premises. The plaintiff has initiated the execution proceedings on 15.07.2015 after about 11 years and defendant came to know on 27.01.2016 when notice received at Jodhpur, Rajasthan. Thereafter, defendant made frantic efforts about the details of the suit has never served with the summons and plaintiff managed the ex-parte decree by fraudulent means and concealment of material and relevant facts. As per plaint, the plaintiff has no locus standi as he is neither the owner/landlord of the suit premises.
4. It is stated that suit premises is a shop bearing no. 1596 at second floor of Bhagirath Place, Chandni Chowk, Delhi-110006 but no such summons were got issued deceitfully at this address. The plaintiff was also well within knowledge of registered office address of defendant at 21/202, Thakur House, K.V. Rajguru marg, Mumbai-400004 but never got issued any summons. The plaintiff got no summons issued at the suit premises and registered office at Mumbai. The plaintiff further wrongly claimed that Sh. M.P. Jain, Managing Director of defendant company and served through it. It is stated that Sh. M.P. Jain has never been the Director/Managing Director of the defendant company at any point of time nor a partner/ managing partner. There is no summons by way of ordinary process or by way of registered post were at all served on the defendant. The postal receipt M-43 of 2016 Page No.2/14 of AD Card and AD Card are not singed by Sh. M.P. Jain nor any official or Director but plaintiff fradulently obtained the alleged postal card but never served upon the defendant. The defendant had no knowledge of order dated 23.07.2003 and ex-parte decree dated 05.03.2003. The absence of defendant was not deliberate or intentional but due to non service of summons.
5. The defendant learnt only on 27.01.2016 when notice of execution was recevied from the said ex-parte decree. The defendant has assailed the ex-parte decree, interalia, on the grounds that there is no landlord/tenant relationship between the parties as per agreement dated 09.03.1989. The summons/ notice not served at the suit premises address and plaintiff played fraud. No summons/notice served upon Managing Director/ Director/ Official of the defendant company. Sh. M.P. Jain never been the Director/Managing Director of the defendant company. It is further stated that after ex-parte decree dated 05.03.2004, subsequently an application filed for amendment of the decree but no notice ever served upon the defendant, whereby award of mesne profit @ Rs.6840/- per month also granted by the court after 30.11.2002 till delivery of the possession. Therefore, ex-parte decree and amended ex-parte decree are liable to be set aside.
6. The plaintiff by serving the notice of execution did not send any documents or complete copies of particulars. The plaintiff has also not furnished the details of earlier execution application, which was got dismissed. It is stated M-43 of 2016 Page No.3/14 that the defendant is not in possession of the premises at the time of filing of the suit nor at the time of filing of execution. Therefore, ex-parte decree is liable to be set aside.
7. The plaintiff has not proved any document on record to establish that defendant was in exclusive possession of the said shop being tenant at the alleged rate of monthly rent of Rs.5700/- or Rs.6840/-. The defendant has good case that is why plaintiff had obtained ex-parte decree by way of fraudulent means by concealing the true and correct facts. It is further stated that the judgment and decree passed against the principles of natural justice. The applicant/defendant seeks that ex-parte decree dated 05.03.2004 passed in suit no. 65/2003 titled as 'Surinder Kumar Arora vs. Jain Metal Components' decreed ex-parte vide judgment dated 05.03.2004 of Sh. Prem Kumar, the then Ld. ADJ, Tis Hazari, Delhi, may be set aside.
8. Plaintiff now represented through LRs filed the detailed reply to the application. Preliminary Objections taken that the present application is an abuse of process of law and filed with sole intention to avoid making payment of decreetal amount and to avoid delivery of suit property back to the plaintiff/decree holder. It is stated that defendant company was duly served with the summons issued by the Predecessor court as evident from the record but defendant despite service failed to appear and accordingly proceeded ex-parte and thereafter, the evidence of plaintiff was recorded and suit was decreed on 05.03.2004. The defendant despite knowledge of decree failed to pay the decreetal amount and M-43 of 2016 Page No.4/14 hence, plaintiff was compelled to file the present execution petition. It is stated that application is barred by limitation.
9. It is stated that after passing of the decree, plaintiff went to Jodhpur and met officials/ Directors of defendant company and shown the judgment and decree and demanded the possession and payment of decreetal amount. Since the plaintiff had good relations with partners of M/s. Jain Metal Components Pvt. Ltd., plaintiff did not immediately executed the decree. However, compelled to file the execution petition in the year 2010. Since the plaintiff was not keeping good health, therefore, could not pursue the execution petition, which was dismissed for non-prosecution. Plaintiff Sh. Surinder Kumar Arora expired on 11.03.2014 after prolonged illness. Thereafter, Sh. Avi Arora son of the plaintiff went to Jodhpur to meet Mr. Narendra Jain and Mr. Mahendra Jain and contacted on telephone no. 9314711116 and asked to come to the factory office at 22/4, Heavy Industrial Area, premises of sister concern and the copy of judgment and decree shown to them and request was made. Thereafter, Sh.Avi Aora met Sh. N.K. Jain and Sh. M.P. Jain at their resident and discussed the matter. The offer was made of Rs.20 lacs for all claims but son of the plaintiff did not agree. The Directors/ Officials of defendant company have full knowledge of judgment and decree, therefore, application is liable to be dismissed.
10. The plaintiff stated that the true facts are that the JD had admitted that Decree Holder was the landlord of the shop at second floor of property no. 1596, Bhagirath Place, M-43 of 2016 Page No.5/14 Chandni Chowk, Delhi. It was initially given on license/ lease to the JD. Infact plaintiff Sh. Surinder Kumar Arora was the proprietor of M/s. Tulsi Dass and Sons, which was initially owned by his father late Sh. Tulsi Dass. M/s. Tulsi Dass and Sons had taken the suit property on rent from the then owner/landlord smt. Shailja Devi in 1969 and since then running the business of Pharmaceutical Distributor in the name and style of M/s. Tulsi Dass and Sons. After the death of Sh. Tulsi Dass on 26.06.1984, the plaintiff Sh. Surinder Kumar Arora, the only son become the owner of business of M/s. Tulsi Dass and Sons and inherited the tenancy rights and also running the pharmaceutical business. The plaintiff's main business was at Jaipur. Therefore, Sh. Surinder Kumar Arora was not able to handle business at Jaipur and Delhi. The defendant/applicant M/s. Jain Metal Components through partners Mr. N.K. Jain and Mr. M.P. Jain approached the plaintiff in the year 1989 for the suit property on license basis for selling their goods. The plaintiff Sh. Surinder Kumar Arora agreed to the proposal of defendant and license agreement was executed. Later on the license agreement was converted into regular rent agreement of mutual agreement between the parties and M/s. Jain Metal Components became the tenant and having been running the business from the suit premises.
11. It is stated that initially M/s. Jain Metal Components was a partnership firm concerned of several partners Sh. N.K. Jain, Sh. M.P. Jain, Sh. Sohan Lal Jain and Sh.Manohar Lal Jain, who are members of one family. However, in the year 1994, the said partnership firm was M-43 of 2016 Page No.6/14 converted into private limited company M/s. Jain Metal Components Pvt. Ltd. At 16-B (II) Heavy Industrial Area, Jodhpur, Rajasthan. The correspondence exchanged between the parties filed along the reply. The plaintiff was carrying on business prior to 1989 and was a registered dealer with the Sales Tax and registration documents and other correspondence filed on record. The correspondence also filed with regard to payment of amount as a license fee in the year 1993 to 1997. The defendant/applicant continued to illegally occupy the property even after passing of the decree. The plaintiff and the LRs of plaintiff made several requests even to make an amicable settlement. It is further stated that the assertion made by the applicant/defendant on oath are totally false that M/s. Jain Metal Components have neither been in possession at the time of filing of the suit nor at present. However, documents filed on record shows that the applicant/defendant company was in possession of the suit premises. Even the website of the defendant company shows having offices at Jodhpur and Bhagirath Place, Delhi. The Fax numbers and telephone numbers, e-mail IDs of establish that the applicant/defendant company was well in possession of the suit premises. It is stated that applicant/defendant company made false averments in collusion with the alleged Objector one Sh. Om Prakash Seth in order to grab the property of the plaintiff. AR Sh. Deepak Singhvi intentionally made false statement and liable to be prosecuted under Section 340 Cr.P.C.
12. On merits, all the averments made in the application are denied and Preliminary Objections and facts M-43 of 2016 Page No.7/14 stated in the reply are reiterated. It is stated that the application is liable to be dismissed.
13. The applicant/defendant filed detailed rejoinder to the reply and denied all the averments made in the reply. The assertions made in the application are reiterated.
14. I have heard Sh. Chaudhary Ranjit Singh, Counsel for the applicant/ defendant and Sh. Subhash Chawla, Counsel fort the plaintiff and perused the record.
15. Ld. Counsel for the applicant/defendant Sh.Chaudhary Ranjit Singh contended that the suit bearing no. 65/03 was filed by plaintiff against M/s. Jain Metal Components Pvt. Ltd. mentioning the address through Sh. M.P. Jain, Managing Director at Jodhpur, Rajasthan. There is no legal and valid service upon the defendant. He referred that there is no official/Director/Managing Director in the name of Sh.M.P. Jain with the defendant company. He has referred to the AD Card received by the Court does not bear the signatures of alleged Sh. M.P. Jain or any official of the defendant company.
16. He further contended that the defendant company at no point of time received any summons of the suit, therefore, could not appear. He emphasized that the defendant alleged to be the occupier of the premises at 1526, Bhagirath Place, Chandni Chowk, Delhi but no summons served by the plaintiff at the suit premises, for which the suit for possession and arrears of rent and damages/mesne profit M-43 of 2016 Page No.8/14 has been filed. As per Order 29 CPC, the plaintiff has not issued any summons to the registered office of the defendant company. He further contended that there is no relationship of landlord and tenant between the parties and plaintiff has good case as incorporation of agreement dated 09.03.1989 clearly establish this fact. The plaintiff was never the tenant or licensee under the plaintiff, therefore, there is no locus- standi of the plaintiff to file the present suit for possession.
17. Ld. Counsel for the applicant/defendant further contended that the plaintiff/respondent has obtained ex-parte order and decree by fraudulent means. He emphasized that after receiving the reply from the Slum Authorities under RTI, the present premises falls under the Slum, therefore, it is essential to obtain premises before filing any suit within the area notified for Slum Authorities. He submitted that plaintiff had good case to defend, therefore, ex-parte order and decree may be set aside.
18. Ld. Counsel for the applicant/defendant vehemently contented that plaintiff/respondent intentionally filed the execution petition after 11 years and then only the applicant/defendant company came to know about the ex- parte decree. He further pointed out that earlier also as per record, an execution petition was filed but the same was dismissed for non-prosecution. He contended that the plaintiff/respondent has malafide intention as applicant/defendant has no concerned with the plaintiff and the suit premises. Therefore, application may be allowed.
M-43 of 2016 Page No.9/1419. Ld. Counsel for the applicant/defendant relied on judgments of (i) Sushil Kumar Sabharwal vs. Gurpreet Singh & Others, (2002) 5 SCC 377; (ii) M/s. GKB Optolab Pvt. Ltd. vs. Dinesh Batra & Anr decided by Hon'ble Delhi High in FAO 417/2015 and (iii) Baldev Raj vs. Kishan Singh, 1988 RLR (Note) 43.
20. Ld. Counsel for the plaintiff/respondent contended that a legal agreement entered into between the parties and Sh. M.P. Jain is the competent person being the Managing Director of the defendant company, who was impleaded for service of defendant company. All the dealings were done by Sh. M.P. Jain with the plaintiff. Therefore, suit was filed properly impleading the defendant through Sh. M.P. Jain, Director. He referred to the AD Card which was returned after the service at Jodhpur on defendant. He contended that in the year 2003 the relevant practice was that the postal receipts are not filed on record but AD Card filed on record. He referred to the stamps of postal authorities of Delhi and Jodhpur. It is contended that defendant was duly served and has full knowledge of the filing of the suit but intentionally and deliberately failed to appear before the Court. Ld. Predecessor of the court correctly and legally proceeded ex- parte and passed the ex-parte judgment and decree dated 05.03.2004.
21. He further contended that as per documents filed on record, the defendant remained in the possession of the suit premises after the execution of the agreement. He pointed out the telephone numbers of the suit premises.
M-43 of 2016 Page No.10/14There is a correspondence for demand of rent between 1993 to 1997 and defendant paid the rent amount. He contended that initially the defendant firm was partnership firm and later on converted into Private Limited and Sh. N.K. Jain, Sh.M.P. Jain, Sh. Sohan Lal Jain and Sh.Manohar Lal Jain were all family members became the Directors.
22. Ld. Counsel for the plaintiff/respondent further referred to the documents filed of defendant showing the registration of TIN number with the Sales Tax Authorities and contended that the defendants have misguided the court in this regard and they remained in possession of suit premises till the passing of the decree and till today they are in the possession. He further contended that he has referred in detail the true facts and reply when and how father of the plaintiff entered into agreement of tenancy with the defendant company, which was partnership firm. Later on the agreement was reviewed and defendant became the tenant. He contended that the defendant are well aware of all the proceedings and intentionally and deliberately not appeared and therefore, ex-parte judgment and decree was passed. Ld. Counsel for the plaintiff/ respondent contended that earlier execution was filed but due to bad health of the plaintiff, he could not pursue the petition and same was dismissed for non-prosecution.
23. He contended that the law provided the limitation of 12 years, therefore, within limitation the Decree Holder/plaintiff has filed the execution as per law. Ld. Counsel for the plaintiff/ respondent contended that the plea regarding M-43 of 2016 Page No.11/14 the clearance/permission from Slum authorities is misplaced. It is submitted that in the case of a company, there is no requirement of seeking any permission from the Slum Authority and there is a judgment of our own High Court. Therefore, the plea has no substance. There is no other motive behind it but the circumstances which compelled the LRs of the plaintiff to file the execution after 11 years. He contended that the application is liable to be dismissed. He relied on judgments of (i) Satya Khurana vs. Suminder Singh Reen, 205 (2013) DLT 654 (DB); Jyoti Pershad vs. The Administrator for the Union Territory of Delhi, 1961 AIR 1602; and (iii) judgment dated 12.12.2011 decided by Hon'ble High Court of Delhi in RFA (OS) 79/2011, RFA (OS) 80/2011 and RFA (OS) 81/2011.
24. I have considered the respective contentions of both the Counsels and also gone through the judgments relied on by Ld. Counsel for the parties. I have gone through the record. A suit for recovery of possession and arrears of rent for damages/ mesne profit filed by plaintiff on 02.01.2003. In the plaint, defendant is M/s. Jain Metal Components Pvt. Ltd. and service is effected through Sh. M.P. Jain, Managing Director at Jodhpur, Rajasthan. As per order dated 23.07.2003, the court specifically observed that the defendant was duly served vide AD on 12.07.2003. I have gone through the AD Card, which bears the signatures under the address of defendant company. It also bears stamps of Delhi post office as well as post office of Jodhpur. However, signatures are not readable belonging to Sh. M.P. Jain. It also not mention any name of any official/designation who M-43 of 2016 Page No.12/14 received the summons. However, in my opinion, the defendant was duly served with the AD card at Jodhpur. Sh.Subhash Chawla, Ld. Counsel for the plaintiff/ respondent filed on record documents of defendant, which clearly mention the address of Jodhpur apart from the office at Mumbai. Although plaintiff must have given the address of suit premises and also got issued the summons of the suit at the registered office of the defendant company at Mumbai address. No explanation put forward by Ld. Counsel for the plaintiff/respondent why neither the address of suit premises of the defendant mentioned in the plaint nor any service effected. The e-mail portrayal also shows that even on the Internet the registered office is Jodhpur, Rajasthan, branch office is at Mumbai and it also mentioned Delhi branch i.e. the suit premises 1596, Second Floor, Bhagirath Place, Chandni Chowk, Delhi. Further the correspondence filed on record shows that the plaintiff during the subsistence of the relationship between the parties at correspondence at Jodhpur address.
25. The record further shows that the defendant did not appear and proceeded ex-parte. Now after about almost 12 years, the applicant has appeared and taken the plea that they were served with notice of execution petition, therefore, came to know about the ex-parte decree. It is pertinent to mention here that in these 12 years another development taken place that in the execution petition filed by plaintiff/ respondent one Sh. Om Prakash Seth has filed objections that he is in possession of the suit premises. The defendant being a Private Limited company and raised certain important, vital M-43 of 2016 Page No.13/14 and legal issues on the merits of the suit. They have also put up sufficient cause for non-appearance of the defendant and not contesting the present suit.
26. In my opinion, the alone discussed circumstances shows sufficient cause for non appearance of defendant company. Although they are found to be negligent but in the interest of justice, in my opinion, they be given one chance to put forward their defence to the claim of the plaintiff/respondent. The plaintiff/respondent can be compensated. Hence, I allow the application under Order 9 Rule 13 CPC and set aside the ex-parte order and decree dated 05.03.2004 subject to cost of Rs.50,000/-. Out of which Rs.30,000/- to be paid to the plaintiff and Rs.20,000/- with Legal Aid Cell. In addition to it, I direct the defendant company to furnish a bank guarantee of Rs.5 lacs for a duration of three years. Application under Order 9 Rule 13 CPC is decided accordingly.
Announced in the open court today the 21st November, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 21.11.2016 M-43 of 2016 Page No.14/14