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Date of Decision: 24th December, 2024
40931/2023 (1)CAP CAB INDIA LTD.
Through its Director.
(2)MR. JATINDER PAL SINGH Director, Cap Cab India Ltd.
Both at Plot No.WZ-663 Office No.202, 2nd Floor, Madipur, New Delhi-63 .....Petitioners
Through: Mr. Neeraj Sharma, Advocate
Through its Proprietor Kulbhushan Mittal SU-214, Pitampura, New Delhi .....Respondent
Through: Ms. Suruchi Mittal, Mr. Shubham & Ms. Deepali Dasgupta, Advocates
JUDGMENT
1. The present Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the Revisionists/Defendants challenging the Order dated 03.09.2019 passed by the learned Additional District Judge in CS No. 579022/2016, whereby the Petitioner’s Application under Order XXXVII Rule 4 of CPC, 1908 was dismissed.
2. It is vehemently contended on behalf of the Revisionists/ Defendants that allegedly the service has been affected on the address at 82-B, DDA LIG Flats, Madhuban Apartments, Near Madipur Metro station, Punjabi Bagh, New Delhi, but the Revisionist-Company never functioned on the said address and no service of summons, at any point of time, was affected on the above address.
3. It is further submitted that the Respondent-Company was facing liquidation proceedings since the year 2017 and it is only during the Execution Proceedings that one Shri Mahender Kumar, who is an employee of his son, informed the Petitioner/Defendant about the summons. It is only after receiving this information that the Petitioner came to know about the decree against him and thus, moved an appropriate Application for setting aside the ex parte judgment and decree dated 12.02.2018.
4. It is further submitted that the Invoices relied upon by the Respondent/Plaintiff are fabricated documents and service upon the Revisionists/Defendant has been manipulated.
5. Learned counsel for the Revisionist/Defendant further submits that allegedly service has been effected upon the address 82-B, DDA LIG Flats, Madhuban Apartments, Punjabi Bagh, New Delhi, where his son had been doing business and it cannot be considered as a deemed service upon the Revisionist/Defendant.
6. It is further submitted that the learned District Judge fell in error in dismissing the Application without appreciating that the Revisionist/Defendant had never functioned from the given address. Also, there were two more addresses of the Revisionist/Defendant, one F-123, Industrial Area, District Alwar, Bhiwadi and the other one at Khasra-766, Burari Village, Delhi, which was with the knowledge of respondent/Plaintiff but no summons were issued on those addresses. It is therefore, contended that the impugned Order dismissing the Application under Order XXXVII Rule 4 of CPC, 1908 filed by the Revisionist/Defendant, is liable to be set aside.
7. Learned counsel appearing on behalf of the Respondent/Plaintiff, however, has explained that the address of 82-B, DDA LIG Flats, Madhuban Apartments, Punjabi Bagh, New Delhi, was mentioned on the Invoices issued in the name of the Revisionist/Defendant-Company where the goods had been delivered. Furthermore, there is a clear endorsement on the Invoices in respect of a Cheque in the sum of Rs.9,00,000/- having been given by the Revisionist/Defendant on 30.05.2015.
8. It is claimed that the service on the address had been correctly effected, but intentionally avoided by Representative of the Revisionist/Defendant, who refused to accept the summons. Furthermore, the service in the Execution Petition, pursuant to which the Revisionist/Defendant has claimed that he came to know about the Decree, was affected on the same address where the Judgment Debtor was found present and he undertook to appear in the Court.
9. The learned ADJ has therefore, rightly dismissed the Application under Order XXXVII Rule 4 of CPC, 1908.
10. Submission heard and record perused.
11. The Respondent/Plaintiff had filed a Suit for recovery of Rs.9,00,000/- with interest @ 9% p.a. in respect of Invoice vide No. 201 dated 15.05.2015.
12. The Revisionist/Defendant was served with the summons of appearance but did not appear despite service on 14.09.2017. Consequently, the Suit was decreed on 12.02.2018.
13. The main grievance of the Revisionist/Defendant is that he never had any association with the premises being 82-B, DDA LIG Flats, Madhuban Apartments, Punjabi Bagh, New Delhi and the service at the alleged property cannot be deemed to be effective and proper service upon the defendant.
14. However, the perusal of the Invoices clearly reflect that it is the same address of the Revisionist/Defendant mentioned on it, where the goods had been delivered, against which cheque of Rs.9,00,000/- was issued. Though now in the present Revision Petition not only the cheque is being disputed but also the delivery of goods is being denied on the ground that Revisionist/Defendant has never dealt with in the business of LED lights and bulbs and had never issued any cheque, but this argument is an afterthought and not acceptable in light of the Invoices wherein the address of the Revisionist/Defendant has been entered as that of DDA Flats.
15. The second aspect is that the summons were issued on the DDA address wherein as per the report of the Process Server, he visited the premises on 08.12.2016, where he met one Shri Mahender Kumar (servant) who informed that the Revisionist/Defendant was out of station and was not available. Again, the Process Server sought to serve the summons on 13.12.2016 but the premises were found locked.
16. Summons were issued through Registered Cover, as well but the same was returned with the endorsement “Refused”.
17. The summons were again sought to be served on the same address and as per the report of the Process Server dated 12.04.2017, again Shri Mahender Kumar was found available at the premises who again stated that the owner was not available and refused to accept the summons.
18. The summons were again sent through Registered Cover for 28.04.2016 but against received back with the endorsement “Refused” as per endorsement dated 17.04.2017.
19. To now say that the Revisionist/Defendant was not having any concern with the DDA premises, is clearly not borne out from the record. This is more significant in the light of the fact that subsequently the summons in the Execution Petition was served on the same address and the summons were conveyed by same Shri Mahender. This all clearly reflect that the summons were intentionally refused and avoided which amount to valid service under the law.
20. The Revisionist/Defendant has now sought to explain that his son was having his business at the said address and that he has no concern with the business of his son. However, this is a clear afterthought whereby the Revisionist/Defendant has sought to wriggle out of the service of summons which were duly served upon him on the correct address, but had been avoided by him.
21. The further contention raised by the Revisionist/Defendant is that there were two other addresses, one of Bhiwadi and the other of Burari, known to the Plaintiff, but the summons were never sent on these addresses. The question of serving summons on two other addresses would have arisen had there been no service effected on the first address which was mentioned on the Invoices.
22. The learned ADJ has rightly held that despite due service of the summons of appearance, the Revisionist purposely avoided appearance in the Court. Therefore, the Application under Order XXXVII Rule 4 of CPC, 1908 has been rightly dismissed.
23. There is no merit in the present Revision Petition, it is hereby dismissed.
JUDGE DECEMBER 24, 2024 r