Parviom Technologies Private Limited v. Karthik Devraj and Others

1. The present appeal has been filed under Rule 5 of Chapter II of Delhi High Court (Original Side) Rules, 2018 challenging the order dated 9 O.A. 13/2024 (Appeal under Rule 5 of Chapter II of Delhi High Court (Original Side) Rules, 2018) & I.A. 1282/2024 (for condoning delay of 101 days in filing the appeal) th January, 2024, along with previous orders dated 27th March, 2023, 25th July, 2023, 29th August, 2023 and 1st

2. Learned counsel appearing for the defendant no. 1 submits that November, 2023, whereby, it was recorded by the learned Joint Registrar that the defendant no. 1 had been duly served, and right of defendant no. 1 to file his written statement, was closed. defendant no.1 was not served with any summons by the plaintiff. The defendant no. 1 is a permanent resident of 27, Trichy Road, Panappalayam, Palladam, Tiruppur, Tamil Nadu-641664, and has been residing therein, for the past sixteen years. 2.[1] Learned counsel appearing for defendant no. 1 submits that the plaintiff had sought to serve the defendant no. 1 upon two addresses, one at Gurgaon (now Gurugram) and the other at Bengaluru. Attention of this Court is drawn to the tracking report filed as Document 9 by defendant NO. 1, to show that he was not served at the Gurugram address, as the tracking report shows that “Item Returned Insufficient Address”. 2.[2] He further draws the attention of this Court to the tracking report filed with respect to the Bengaluru address of the defendant no. 1, to submit that defendant no. 1 was even not served at the Bengaluru address, owing to insufficient address. 2.[3] He further submits that service was sought to be effected by the plaintiff upon defendant no. 1 by E-mail, at the address, i.e., karthikjk3@gmail.com. It is submitted that the said E-mail was used by the defendant no. 1 only till 9th September, 2022. Thereafter, the defendant no. 1 could not get access to the said E-mail account, as the laptop of the defendant no. 1 from which he accessed the said E-mail, was seized by the plaintiff. Further, the password of the said E-mail was also changed, on account of which the defendant no. 1 has not been able to access the said Email after 9th 2.[4] It is submitted that a First Information Report (“FIR”) was lodged against defendant no. 1 in Gurugram by the plaintiff. Thus, it was only when the police called up the defendant no. 1 on 6 September, 2022. th September, 2023, that the defendant came to know about filing of the present suit. It is further submitted that the first appearance by the defendant no. 1 in the present suit was only on 1st November, 2023, after he obtained anticipatory bail in the FIR lodged against him. 2.[5] It is submitted that by the impugned orders, it has wrongly been recorded that defendant no. 1 was duly served and his right to file written statement has been wrongly closed. 2.[6] Learned counsel for the defendant no. 1 submits that, the Gurugram address where the defendant no. 1 is purported to have been served, is a Paying Guest accommodation, where the defendant no. 1 used to stay at the time of his employment with the plaintiff. Therefore, any service at the said address cannot be considered to be service upon defendant no. 1, as he is no longer staying there. 2.[7] It is submitted that when appearance was made on behalf of defendant no. 1 on 1st 2.[8] It is further submitted that the matter was again listed before the learned Joint Registrar on 9 November, 2023 for the first time, the fact of non-service to defendant no. 1 was brought to the notice of the learned Joint Registrar. The learned Joint Registrar directed that the said submission shall be adjudicated, as and when such an application is filed and listed. Pursuant thereto, the defendant no. 1 filed an application, however, the same never got listed and was returned under objections, to file a Chamber Appeal. th January, 2024, wherein, it was again recorded that right of defendant no. 1 herein to file written statement had already been closed. The present Chamber Appeal was, thereafter, filed on 16th January,

2024. Thus, it is submitted that the present Chamber Appeal may be allowed and the delay in filing the same, may be condoned, in the facts and circumstances of the present case.

3. Per contra, learned counsel appearing for the plaintiff vehemently opposes the present appeal. He draws the attention of this Court to the tracking report filed along with the affidavit of service to submit that the defendant no. 1 was served at his address at Gurugram. Thus, it is submitted that once having been served, the defendant no. 1 deliberately did not appear. Therefore, his right to file written statement has rightly been closed. 3.[1] Learned counsel appearing for the plaintiff further submits that the written statement has been filed belatedly by the defendant no. 1, beyond the statutory period, which cannot be allowed.

4. I have heard learned counsels for the parties and have perused the record.

5. At the outset, this Court notes the Memo of Parties filed along with the plaint, wherein, qua defendant no. 1, two addresses have been given, one at Bengaluru, Karnataka and the other at Gurugram, Haryana. The Memo of Parties itself shows that the address of the defendant no. 1 at Gurugram, Haryana, was a Paying Guest accommodation, and the same is mentioned in the Memo of Parties as “A-Star PG”.

6. Perusal of the tracking report shows that the defendant no. 1 was not served in the first instance, in neither the Bengaluru address nor the Gurugram address. Reliance by the plaintiff upon a subsequent tracking report to show service upon defendant no. 1 at the Gurugram address, is of no consequence, as the same was only a Paying Guest accommodation, wherein, the defendant no. 1 was not staying for a long time. In this regard, reference may be made to the averment made by the defendant no. 1 in his Chamber Appeal, wherein, it is stated as follows: “xxx xxx xxx 4.1.3. Thereafter, in the month of May, 2020 Defendant No.1 joined the Plaintiff company in search of a better opportunity and thus shifted to and resided at Gurugram, Haryana from May, 2020 till the 9th of September, 2022. xxx xxx xxx 4.1.9. Due to the aforesaid unfortunate events, Defendant No.1 quit the Plaintiff company and left Gurugram on 13th September, 2022 and returned to his permanent residential address at Tamil Nadu. From then on, Defendant No.1 has been residing at “27, Trichy Road, Panappalayam, Palladam, Tiruppur, Tamil Nadu – 641664

7. Thus, any service upon the defendant no. 1 on the address of the Paying Guest accommodation used at an earlier point of time by the defendant no.1, cannot be considered to be a valid service, upon defendant no. 1. ”. A copy of the travel certificate issued by INDIGO is filed separately as DOCUMENT – 7. xxx xxx xxx” (Emphasis Supplied)

8. Likewise, service upon defendant no. 1 by E-mail, upon an E-mail address, which the defendant no. 1 had not been using after 9th September, 2022, cannot be considered to be a valid service. In this regard, it would be apposite to refer to the submissions made by defendant no. 1, which read as under: 4.1.4. That on 9th of September, 2022, Defendant No.1 was wrongfully confined and beaten by Plaintiff's authorized representative, i.e., Mr. Ankit Rawat, along with other employees of the Plaintiff company. In addition, Mr. Ankit Ladhania, who is also an authorised representative of Plaintiff, illegally accessed and seized Defendant No.1's personal mobile phone (Model: OnePlus Nord) and company laptop (Model: MacBook Pro), through which the Defendant No.1 used to access his both email id’s being ‘karthikjk3@gmail.com’ and ‘karthik.devaraj@outlook.in’. These actions were taken based on a false accusation against Defendant No.1. 4.1.5. Mr. Ankit Ladhania changed the password of the aforesaid email id ‘karthikjk3@gmail.com’ and went one step ahead by also changing the recovery email id and phone number to his own personal email id and his mobile number. As a result, Defendant No.1’s access to such email id was completely blocked from 09.09.2022. 4.1.7. Defendant No.1 made bonafide attempts to recover his Email id, however, all such efforts have gone in vain, as the recovery email id and phone are of Mr. Ankit Ladhania (Authorized Representative / Employee of the Plaintiff) only. A copy of the screenshots of the Email id recovery page taken on Defendant No.1’s computer is filed separately as DOCUMENT – 5 (COLLY). A copy of the screenshot of Mr. Ankit Ladhania’s Truecaller page taken on Defendant No.1’s mobile phone is filed separately as DOCUMENT-6. 4.1.8. Since 09.09.2022, all of the devices that Defendant No.1 used during the course of the employment, i.e., laptop, mobile phone, and email id, have been under the exclusive and illegal control of the Plaintiff. As a result, Defendant No.1 has been unable to access his email account since that date

9. As regards the question as to when the defendant no. 1 gained knowledge about the suit instituted by the plaintiff herein, defendant no. 1 has stated as follows:. 4.1.10. That after about a year, on 06.09.2023 at 04.11 p.m., by way of a telephonic call from the Investigating Officer of Cyber Crime Police Station, Gurugram, Defendant No.1 was apprised that the Plaintiff had lodged a First Information Report against inter-alia the Defendant No.1 herein and CEO of Defendant No.2. The act of lodging the said FIR was nothing but an attempt to take out vengeance and harass Defendant No.1. 4.1.11. Thus, Defendant No.1 in order to secure his personal liberty, was constrained to apply for Anticipatory Bail. The Hon’ble High Court of Punjab and Haryana granted interim bail to Defendant No.1, pursuant to which Defendant No.1 immediately joined the investigation. During the course of such investigation, the investigating officer confronted Defendant No.1 with certain documents furnished by the complainant i.e., Plaintiff herein, one of such documents being a Local Commissioner report filed before this Hon’ble Court. 4.1.13. Therefore, in these facts and circumstances, Defendant No.1 was apprised of the present proceedings in the last week of the month September, 2023 and duly contacted his counsel in order to defend his case

10. Considering the aforesaid discussion, it is manifest that the defendant no. 1 cannot be said to have been served either by E-mail as the address on which it had been delivered, was no longer accessible to the defendant no. 1 after 9. th

11. Considering the submissions made before this Court, this Court is of the considered opinion that there was no valid service made upon the defendant no. 1. Accordingly, in view of the aforesaid finding, with a view to meet the ends of justice, the delay in filing the present Chamber Appeal, is hereby condoned. September, 2022. Further, service upon the defendant no. 1 at the address in Gurugram, again cannot be considered to be valid service, the same being a Paying Guest accommodation, wherein, the defendant no. 1 resided temporarily for a brief period when he was in employment with the plaintiff.

12. Consequently, the impugned orders dated 27th March, 2023, 25th July, 2023, 29th August, 2023, 1st November, 2023 and 9th

13. Accordingly, the present appeal is allowed in the aforesaid terms. January, 2024, to the extent that the same hold that defendant no. 1 had been served and his right to file written statement was closed, are hereby set aside.

14. Though the Chamber Appeal filed by defendant no. 1 has been allowed, the question remains as to whether the written statement filed by the defendant no. 1 can be said to have been filed within the statutory period, considering the fact that the defendant no. 1, as per his own admission, was apprised of the suit proceedings in the month of September, 2023, and put in appearance in the present suit for the first time, only on 1 st