CASE TITTLE:M/S GARDENIA INDIA LTD & ANR V. DR RAKESH KUMAR (HUF
CASE NO:CM(M) 137/2020, CM APPL. 4642/2020
ORDER ON:14.05.2024
QUORUM:. J. SHALINDER KAUR
FACTS OF THE CASE:
The present petition in question challenges the order dated 25.09.2019 passed By the learned District Judge, Delhi, in Civil Suit bearing no. 662/2017, Wherein the learned Trial Court dismissed the application filed by the Petitioners under Order IX Rule 7 of Civil Procedure Code, 1908, for setting aside the ex-parte order dated 06.12.2018. Thus, the present petition has been preferred invoking the Supervisory jurisdiction of this Court under Article 227 of the Constitution Of India.
CONTENTIONS OF PETITIONER:
The petitioner through their counsel Mr. Amit Bhatia, submitted that Petitioner no.1 is a body corporate and petitioner no.2 is the chairman of petitioner no.1 and have been impleaded as defendant in the Suit filed by the respondent seeking recovery of Rs. 40,60,000/- with Pendente lite and future interest. Further, Mr. Sanjeev Sharma is the Managing Director of petitioner no. 1 company in the Suit before the learned Trial Court. The learned Trial Court vide order had issued Summons and notice of the interim application against the Petitioners but returnable,Fresh summons were not ordered to be served upon petitioner Nos.1 and 2 as the respondent and his counsel kept taking adjournments on One pretext or the other. The learned counsel further submitted that in the meanwhile, the Respondent had instituted a compliant case” Under Section 138 of the Negotiable Instrument Act. The petitioner company Received the summons of the aforesaid case and appeared before the Court Of the learned Metropolitan Magistrate, where they moved an application For compounding the case. In view thereof, the compounding application Was allowed and the petitioners deposited the entire payment of the Dishonored cheques amounting to Rs. 26,68,150/- with interest at the rate Of 9% per annum and litigation cost of Rs.25,000/-. The learned counsel stated that during the pendency of the said complaint case, the respondent Never informed the Court or the petitioners that a civil suit arising out of The same facts and on the basis of same dishonored cheques has been filed And is pending before the learned Trial Court.The learned counsel submitted that on one occasion, an official of The petitioner company was trying to locate the orders of the complaint Case and was shocked to discover on the website the pendency of a civil Suit before the learned Trial Court. Thereafter, the petitioners engaged a Counsel and upon inspection of the Trial Court record, it came to the Knowledge of the petitioners that they had been proceeded ex-parte vide. After learning of this ex-parte order, the petitioners moved an Application under Order IX Rule 7 CPC wherein the petitioners put forth The facts and circumstances of the case including the fraud played upon by The respondent in manipulating the service report and filing false affidavits Contrary to the judicial record. However, the learned Trial Court did not Consider the above submissions and summarily dismissed the application Moved on behalf of the petitioners.The learned counsel also submitted that since the respondent was Aware of the truth regarding the service reports, he did not even choose to Furnish reply to the application moved on behalf of the petitioners under Order IX Rule 7 CPC. Nonetheless, the learned Trial Court chose to Dismiss the application of the petitioners and imposed a cost of Rs. 5,000/-.
CONTENTIONS OF THE RESPONDENT:
The respondent through their counsel Mr. Manoj Mittal, contended that the Petitioners have filed an application seeking to set aside the ex parte order passed against them on false and concocted facts. The counsel further submitted that the learned Trial Court has passed a detailed order Regarding the service reports and the steps taken by the respondent to serve The summons on the petitioners. Further, the learned counsel submitted that the petitioners were well Aware of the present proceedings and deliberately chose not only to avoid The summons of the present case but also failed to appear after being duly Served with the summons, with the purpose of delaying the trial of the suit.This conduct of the petitioners has been aptly recorded by the learned Trial Court in the impugned order. It is submitted that the impugned order is Based upon sound reasoning therefore does not require any interference by This Court.
COURTS ANALYSIS AND JUDGEMENT:
The court on hearing the submissions of both the sides and pursuing the records observed that It is undisputed that Mr. Sanjeev Sharma/defendant was served summons on the very first date. However, the court further observed that the issue is with respect to the service of petitioner. The court opined that the perusal of the record of the learned Trial Court shows that Summons of the suit and notice of the interim application were sent for Service for the first time on petitioner along with defendant and the service report with respect to petitioner was not received. Accordingly, the court observed that fresh summons was directed however, the Respondent did not take steps to serve them afresh. The court further, On the other hand, observed that the learned counsel for the respondent had filed original postal receipts along with a tracking report to show that they were duly served Which was accepted by the learned Trial Court. However, the respondent Did not clarify the date when the said summons of the suit were issued for Service of petitioner as the last summons have been issued by The learned Trial Court was also returned and the Ahlmad of the Court had appended his report stating that Steps were not taken by the respondent.the court further observed that no explanation has been given by the petitioners that Mr. Sanjeev Sharma/defendant, being the Managing Director of petitioner company, who was served on the first occasion and was thus, aware About the proceedings of the case before learned Trial Court but failed to Take any steps to get petitioner represented before the learned Trial Court. The court Having considered above, facts & circumstances set aside the impugned order and the exparte order passed by the learned Trial Court is recalled, the court further directed the cost of Rs. 30,000/- to be paid to The respondent by the petitioners on the next date of hearing before the Learned Trial Court. Consequently, the court allowed the petition along with the pending Application.
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judgement reviewed by:Sowmya.R
