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Delhi District Court

M/S Celestial Knits & Fabrics vs P.C.L. Apparels on 19 January, 2011

                                       1

          IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:
                                                        
          CENTER:ROOM NO.32:TIS HAZARI  COURTS :DELHI 


                                                                    CS NO: 52/09
                                                     ID NO: 02401C0062272009
M/s Celestial Knits & Fabrics
A­52, Sector­2,
Noida­201301
Distt. Gautam Budh Nagar
&
B­60, East of Kailash
New Delhi­65                     .....Plaintiff

Vs.
1.

P.C.L. Apparels, B­1/E 16, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi.

2. Sh. Raman Sethi Partner of PCL Apparels B­1/E 16, Mohan Cooperative Industrial Estate Mathura Road, New Delhi.

3. Ms. Gauri Sethi Partner of PCL Apparels B­1/E 16, Mohan Cooperative Industrial Estate Mathura Road, New Delhi. .....Defendants @contd.

ORDER ON APPLICATION U/O 9 RULE 13 CPC

1. By this order I shall dispose of application Under Order 9 Rule 13 CPC moved by defendant on 31.5.06.

2. I have Ld. Counsel Sh. P.S.Singhal advocate for plaintiff and Ld. Counsel Sh. Sanjeev Sharma advocate for defendant . I have also carefully perused the entire record.

3. The suit was filed by plaintiff against the defendant for recovery of Rs.3,25,450/­/. Summons of the suit were issued to the defendant . However, none of the three defendants appeared despite service of summons through process server and registered post. Consequently defendants were proceeded exparte on 7.9.92. Plaintiff led its exparte evidence which led to passing of judgment and decree on 12.5.06. Thereafter application under disposal was moved. It was contested by the decree holder / non applicant but it was dismissed by Ld. Predecessor vide order dated 1.12.2006. This order was challenged by the applicant J/D before Hon'ble High Court whereby vide order dated 8.4.08, order of Ld. Predecessor in application U/O 9 r 13 CPC was set aside and application @contd.

was restored with direction to the parties to lead the evidence before arriving at any fresh decision in the matter.

4. In the application under disposal , defendant applicant took the plea that neither they were served with the process through registered post nor summons through process server was served upon them. It is contended that summons were purportedly served to Miss Riya but no such employee was working with them during the relevant period. In para 4 of the Order of Hon'ble High Court , it is observed that J/D may lead evidence to show whether or not they had an employee by the name of Miss Riya or whether Miss Riya received summons or not.

5. As such evidence was led by the applicant and they examined Sh. V.K.Kapoor as AW1.

6. In his affidavit in chief Ex.A­I, he stated that no employee by the name of Miss Riya ever remained in employment with the defendant / applicant firm and that defendant and its partners were never served with the summons through Miss Riya. Witness has also produced the attendance register of the defendant firm for the period form April,2004 to March,2005 and from @contd.

April,2005 to March,2006 to show the names of all the employee of the defendant firm who have been working with the defendant firm at the relevant point of time and placed on record the photocopy of the attendance register for the month of August'2005.

7. AW1 was cross examined by LD. Counsel for non applicant plaintiff . In his cross examination, the witness stated that he is not aware of the exact number of partners of the applicant JD firm. He further stated in his cross examination that dak of JD used to be received either by the Security staff or any person who so ever was present on the reception. He could not disclose the name of the persons who were working as security staff. He accepted that there was no specific employee / receptionist in August'2005 and stated that the post man of the area used to deliver daaks / post in the office of the JD in the year 2005. He was not aware of the post man of the area. He could not identify signatures appearing in encircle A on Ex.AW1/DB and Ex.AW1/DC. He denied that processes were duly received in their office. He also denied that the attendance produced by the defendant is forged and fabricated.

8. Perusal of document Ex.AW1/A shows that it is prepared by one person.

@contd.

Not only all the names there in are entered by one and the same person but all the entries P & A (i.e. Present and Absent) are also in the handwriting of the same person. It is evident that in case a genuine register was maintained by defendant office, each employee would have marked his presence with different handwriting and different pen. For these reasons the document Ex.AW1/1 can not be relied to conclude that there was no employee by the name of Ms. Riya with defendant applicant .

9. It is admitted case of the J/D applicant that address appearing in the summons sent through process server as well as registered post belongs to them. As per Section 27 of General Clause Act , once the process is sent through registered post at the admitted address, the presumption of due service arises. A simple & plain denial by the J/D that the person who received the summons is not sufficient to revoke the legal presumption.

10.Further more J/D applicant have failed to establish on record as to whether Ms. Riya was not their employee . It can not be a matter of co­ incidental that not only summons sent through process server but also summons sent through registered post , were served upon the defendant through their same employee Miss Riya, a Clerk working with them. The @contd.

post man as well as process server are Government Servants and in the absence of any cogent evidence, their report can not be rubbish or disbelieved on the mere denial of the defendant .

11.At this juncture Ld. Counsel for J/D has referred to case titled Saveena Enterprises Pvt. Ltd Vs. Kalatex and Others 2007 (96) DRJ 233 .

12.Order 30 Rule 3 CPC provides that service of summons on a partner or any other person in control of management of the firm shall be deemed to be due service. It is stated by applicant's own witness AW1 that in their firm process, letters etc were supposed to be received by Security Personnel or by the Receptionist. Since the witness himself fails to recall the name of the Receptionist on duty on 20.8.05 and 29.8.05, in my considered view the summons in questions were duly served upon J/D applicant. The story of denial of Miss Riya is nothing but an after thought in order to defeat the decree . As such the application stands dismissed being devoid of merits. No order as to cost. File be consigned to RR. ANNOUNCED AND DICTATED IN OPEN COURT ON : 19.1.2011 (SURINDER S. RATHI) ADJ­07/CENTRALDELHI 19.1.2011 @contd.