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Tata Capital Financial Services Ltd., 2019 (1) R.A.J. 558 (Del)

2. National Small Industries Corp. Ltd. v. Myson Electronics P. Ltd. and Ors. CS(OS) 1164/2002

3. Rajni Kumar v. Suresh Kumar Malhotra and Ors. Civil Appeal No. 2538/2003

14. On the other hand, Mr. Sunil Dalal, learned Sr. Counsel appearing for the plaintiffs would submit that the present application is liable to be dismissed as defendant No.1 has failed to make out a special circumstance both in regard to the illegality in deeming service of summons as well as facts sufficient to entitle KUMAR YADAV CS(OS) 387/2020 Page 7 him to defend the suit. He stated that defendant No.1 has been duly served in the matter at all addresses mentioned in the memo of parties. The services of the summons had duly been effected by defendant No.1 vide speed post as well as through process server, but however the same was deliberately avoided by defendant No.1 for the reasons that "addressee left and no such person at this address". He stated admittedly all the addresses as mentioned in the memo of parties are of the defendant No.1 and the said fact is not disputed by the defendant No.1. Even the addresses mentioned in the affidavit by defendant No.1 is of S-370, LGF, Panchsheel Enclave, New Delhi. The said address was duly visited by the process server on February 19, 2021 and February 23, 2021 for the service of summons, however the same was refused by the agent of the defendant No.2 deliberately for one reason or the other. He stated that in view of the provision of Order V Rule 9 CPC, defendant No.1 stands duly served as the defendant No.1 has intentionally avoided the summons thereby refused to take the delivery of the postal articles containing the summons and summons through process server at all the addresses. He stated, in fact, as per the case of the defendant No.1, service was effected on the defendant No.1 on the same address as mentioned in the memo of parties by the mode of postal service on March 1, 2021 which makes it apparent that previously, defendant No.1 had been avoiding the service of summons through process server and registered speed post in order to delay the court proceedings. He also justifies that the e-mail ID [email protected] KUMAR YADAV CS(OS) 387/2020 Page 8 belongs to the defendant No.1 and he has been operating the same e-mail ID as late as August, 2021 as is clear from the website of the defendant No.1. So, today, according to him, the stand taken by the defendant No.1 that the said e-mail is inoperable / redundant is purely an afterthought only to wriggle out the decree passed against him by this Court. That apart, he also stated that in another matter filed by the plaintiff No.1 against Madhu Sawhney and Ors. being CS (OS) 385/2020, which is pending before this Court, wherein defendant No.1 has been arrayed as one of the defendants in the said suit, the defendant No.1 has been duly served on the same address in the said suit. Even the counsel of Mohinder Singh, defendant No.2, i.e. Mr. Amit Kumar Sinha, Adv. who has filed his appearance on February 23, 2021 in the present suit has been appearing for the defendant No.1 in CS(OS) 385/2020. In this regard, he has drawn my attention to the order passed by this Court in CS(OS) 385/2020. Hence, it cannot be presumed that defendant No.1 had no notice about the pendency of the present suit against him. Even on merits, he stated that the defendant No.1 had executed the memorandum of understanding on September 14, 2017, whereby defendant No.1 has admitted his liability and represented, declared, assured and undertook to pay the consideration of ₹4 Crores towards the purchase of the property to the plaintiffs and has issued various cheques in favour of the plaintiffs from time to time for the payment towards the above debt, outstanding liability which were dishonored on presentation of the same for encashment. In other words, it is his KUMAR YADAV CS(OS) 387/2020 Page 9 submission, there is no triable issue entitling him to leave to defend. In support of his submissions, he has relied upon these two judgments: