@JUDGMENTTAG-ORDER
Mr. Valmiki J. Mehta, J.—I.A. No. 878/2016 (for setting aside order dated 17.8.2010 filed by defendant) & I.A. No. 879/2016 (condonation of delay of 227 days filed by defendant)
1. These applications are filed for setting aside the decree dated 17.8.2010 by which the Order 37 CPC suit was decreed on account of nonappearance of the applicant/defendant and for condonation of delay allegedly of 227 days in filing the application under Order 37, Rule 4 CPC.
2. The facts of the case are that plaintiff filed the subject suit under Order 37 CPC for recovery of Rs.30 lacs along with interest on the cause of action that plaintiff had sold an imported vehicle to the defendant namely Hummer, H-3, registration No. CG-04 DA 8208, Chassis No. SGTDN136168217410, Engine No. T68217410, Model 2006, colour Bolder Grey, petrol, 3500CC. Defendant/applicant for the purchase of the vehicle had paid, out of the total sale consideration of Rs. 40 lacs, a sum of Rs. 10 lacs and for the balance a post dated account payee cheque of Rs. 30 lacs bearing no. 208586, dated 2.4.2007, drawn on Dena Bank, Chatterpur Branch, New Delhi was issued in favour of the plaintiff. Since the defendant failed to pay the amount of the cheque, although, asking the plaintiff not to deposit the cheque, hence the subject suit came to be filed.
3. By the present application, it is contended on behalf of the applicant/defendant that the applicant/defendant was not served in the suit and that the applicant/defendant never refused to accept the summons and nor did his wife as is recorded in process issued by the Court as also the orders of the Court. On merits, it is stated that the cheque which was issued by the defendant was against another transaction and which became redundant and thus the plaintiff was not entitled to encash the subject cheque for payment. It is also contended on behalf of the applicant/defendant that the address of the defendant is not that as shown in the memo of parties viz H.No. 18 & 19, Village Sultan Pur, M.G. Road, New Delhi but the address of the defendant actually is H.No. 95-A, Khasra No. 534, Sultanpur Colony, New Delhi. It is therefore argued that there is no service upon the defendant and therefore, ex parte decree is liable to be set aside.
4. I am not at all convinced with the arguments and contentions of the applicant/defendant and the applications are liable to be dismissed and are accordingly dismissed for the reasons given hereinafter. The present is not a case where only one attempt was made by the plaintiff to serve the defendant or that the defendant was admittedly served only through court process server and not registered post AD. As per the record, summons in the suit were for the first time issued for 18.12.2009. For this date though the Joint Registrar recorded in the order dated 18.12.2009 that defendant is not served, actually the defendant stood served as per Order 5, Rule 15 CPC because the wife of the defendant refused to accept the summons. The name of the wife is also written in the endorsement behind the summons as Smt. Rampali. It is not the contention of the applicant/defendant in the subject application that Smt. Rampali is not the wife of the defendant/applicant Sh. Raj Pal Khari. Really therefore for the first date itself the defendant was served and there was no need of further service. It is also noted that for the first date of hearing on 18.12.2009 summons were also sent by registered AD post and the endorsement of the postal department shows that in spite of repeated intimations, the defendant/applicant failed to receive the registered post AD.
5. Before I proceed to the second date of service, it is required to be noted that the contention of the applicant/defendant that the address given of the applicant/defendant in the memo of parties viz H.No. 18 & 19, Village Sultan Pur, M.G.Road, New Delhi is not correct is a misconceived submission because a reference to the documents filed by the plaintiff show that not only a receipt signed by the defendant showing the address of the defendant as H.No.18 & 19, Village Sultan Pur, M.G. Road, New Delhi with the mobile number of the defendant, but also the photocopy of the election identity card of the defendant himself has been filed with the plaint and which shows that residential address of the defendant is H.No. 18 & 19, Village Sultan Pur, M.G. Road, New Delhi. It does not therefore lie in the mouth of the defendant to contend that the address of the defendant has not been correctly shown in the memo of parties or that processes which were issued in ordinary method and by registered AD post were not sent to the correct address of the defendant/applicant.
6. After the first endeavour of service of the defendant on 18.12.2009 and which returned with the report of refusal by the wife of the defendant/applicant fresh service was ordered for 9.3.2010. For this second date of 9.3.2010, again report of the postal department so far as service by the registered AD post is that in spite of repeated intimations, the defendant/applicant failed to receive the postal article. With respect to ordinary summons, there are two endorsement dated 22.1.2010 and 26.2.2010. For 22.1.2010, the report is that the mother of the defendant after talking to the defendant on phone refused to take the summons and the report of 26.2.2010 is that the defendant himself has refused to take the summons in the suit. Clearly, therefore, the defendant was even served directly as also through the family members for the date 9.3.2010. Also, that the defendant was clearly evading and avoiding service becomes clear from report of the postal department on the registered postal cover of the defendant failing to receive the post in spite of repeated intimations.
7. In view of the above, it was clear that there was no need of service of the defendant by publication as the summons stood served on account of as many as three refusals, however, as a matter of abandon caution, a learned Single Judge of this Court ordered service by publication by his order dated 16.3.2010 and the plaintiff incurred substantial charges for service of the defendant by publication in the newspaper Statesman for 20.4.2010. Copy of the newspaper citation of the newspaper Statesman dated 20.4.2010 is in record and the entire newspaper exist in the miscellaneous file of this Court.
8. In my opinion, there is even lack of correctness and honesty on the part of the defendant so far as merits of the case are concerned, though I am not saying finally, inasmuch as, if according to the defendant/applicant the subject cheque with the plaintiff was redundant, then there was no reason why a stranger defendant would leave a signed cheque with the another stranger viz plaintiff and why the defendant would not have asked back the original cheque from the plaintiff assuming the cheque was given for another transaction which did not go through. In any case, aspect of merits need not be examined once it is found that defendant, in spite of repeated endeavours of service both in the ordinary method and through court process as also registered AD post, not only evaded service but refused service directly as also through family members and hence was not only served in the ordinary method but was in fact subsequently served through publication.
9. I may also note that decree has been passed way back on 17.8.2010 and this application for setting aside the decree is brought up for hearing for the first time in January 2016.
10. In view of the above, the applications do not have merit, whether for condonation of delay and much less with respect to setting aside of the decree passed in the default of the defendant not entering appearance in the Order 37 Suit. Dismissed.
