Ankit Garg v. Narender

1. Allowed, subject to just exceptions. CM APPL. 47412/2024

2. The above-captioned application has been filed seeking extension of time to pay court fee.

3. The prayer made in the application is allowed, subject to the appellant depositing court fee, if any, within ten (10) days.

4. The application is, accordingly, disposed of. RFA(COMM) 333/2024

5. This appeal is directed against judgment and order dated 09.07.2024 passed by Mr Gorakh Nath Pandey, learned District Judge (Commercial Court), North, Rohini, Delhi.

6. Via the impugned judgment and order, the trial court has dismissed the suit instituted by the appellant/plaintiff for non-prosecution due to failure on the part of the appellant/plaintiff to take steps for effecting service on the respondent/defendant as well as for failure to pay costs imposed by the trial court via order dated 09.02.2024.

7. The record discloses that the suit was filed in and about September

2022. The record also shows that since summons were not received back, the trial court had, on multiple occasions, directed issuance of fresh summons to the respondent/defendant, albeit, upon process fee being deposited. 7.[1] The impugned judgment and order records that on a previous occasion, summons issued to the respondent/defendant via RC was received back due to “insufficient address”.

8. Concededly, despite appellant/plaintiff failing to take necessary steps, the trial court accorded another opportunity to the appellant/plaintiff on 09.02.2024 to effect service on the respondent/defendant, subject to deposit of costs of Rs.10,000/- with the District Legal Service Authority (DLSA), North Rohini Courts, Delhi, within two (2) weeks.

9. Admittedly, the appellant/plaintiff moved an application on 13.05.2024 for waiving costs imposed by the trial court when more than three (3) months elapsed since the order dated 09.02.2024 had been passed.

10. It is against this backdrop that the trial court passed the order dated 09.07.2024.

11. Counsel for the appellant/plaintiff says that the appellant/plaintiff is not in a position to deposit Rs.10,000/- towards costs. He further states that the address available with the appellant/plaintiff was furnished for effecting service on the respondent/defendant. 11.[1] It is the submission of the counsel for the appellant/plaintiff that the subject goods were supplied to the respondent/defendant at the address given for affecting service.

12. As regards the issue concerning the insufficiency of address of the respondent/defendant, counsel for the appellant/plaintiff states that the address furnished for affecting service on the respondent/defendant is the same address which is mentioned on the invoices. 12.[1] In support of the plea that the address provided is complete, counsel for the appellant/plaintiff has also drawn our attention to the “certificate of non-starter report” dated 31.08.2022 which, inter alia, alludes to the following message, i.e., “item returned as refused.”

13. On merits, it must be noted that via the suit action the appellant/plaintiff seeks recovery of Rs.4,20,049/- along with interest at the rate of 24% from the date of institution of the suit till realization.

14. Although the appellant/plaintiff has not displayed alacrity in pursuing the suit action, we are inclined to grant one more opportunity to the appellant/plaintiff to effect service on the respondent/defendant given what is alluded to above.