Cross Fit LLC v. RTB Gym and Fitness Centre

Delhi High Court · 06 Jan 2023 · 2023:DHC:191

C. Hari Shankar

CS(COMM) 543/2021

2023:DHC:191

civil appeal_dismissed Significant

AI Summary

The Delhi High Court upheld an ex parte decree in a commercial suit, holding that the defendant failed to show sufficient cause to set aside the decree under Order IX Rule 13 CPC, emphasizing strict procedural compliance under the Commercial Courts Act, 2015.

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Neutral Citation Number : 2023/DHC/000191

CS(COMM) 543/2021
HIGH COURT OF DELHI
CS(COMM) 543/2021 & I.A. 17309/2022
CROSS FIT LLC ..... Plaintiff
Through: Mr. Saif Khan, Mr. Shobhit Agarwal and Mr. Prajjwal Kushwaha, Advs.

VERSUS

RTB GYM AND FITNESS CENTRE THROUGH ITS PROPRIETOR MR. ARUN SHARMA ..... Defendant
Through: Ms. Nupur Grover, Adv.

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR O R D E R(ORAL)
06.01.2023

I.A. 17309/2022

JUDGMENT

1. This is an application by defendant under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside order dated 6th September 2022, whereby CS(COMM) 543/2021 instituted by the plaintiff, has been decreed in the plaintiff’s favour, ex parte.

2. Prior thereto, by order dated 15th February 2022, this Court had, noticing the fact that the defendant had been served by speed post as well as email and had, nonetheless, not appeared, proceeded against the defendant ex parte.

3. This application avers that the defendant remained unaware of the institution and pendency of the present suit and came to know of the passing of the judgment and decree dated 6th September 2022 only when, consequent to directions issued in the said judgment, a local commissioner appointed by this Court visited the premises of the applicant-defendant.

4. Ms. Nupur Grover, learned Counsel for the defendant has reiterated this contention and has sought a sympathetic view from the Court, submitting that there was no reason for her client to remain absent from the proceedings, if he was actually aware of their pendency. She has placed reliance on the following passages from the judgment of the Supreme Court in Parimal v. Veena[1].

“15. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr.2,; Madanlal v. Shyamlal3,; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors.4,; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors.5,; Kaushalya Devi v. Prem Chand & Anr.6; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr.7,; and Reena Sadh v. Anjana Enterprises8,). 16. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore,

AIR 2000 SC 2306 AIR 2002 SC 100 AIR 2002 SC 451 AIR 2002 SC 1201

AIR 2008 SC 2054 the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

PRESUMPTION OF SERVICE BY REGISTERED POST &

BURDEN OF PROOF:

17. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors.9, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra10.

18. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani11, this Court held as under: "There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. ” (Emphasis added)

5. The afore-extracted passages from the judgment of the Supreme Court clearly hold that, while examining an application under Order IX Rule 13, the Court has to satisfy itself that the defendant honestly and sincerely intended to remain present when the suit was called for hearing AIR 2010 SC 3817 JT 2010 (12) SC 287 AIR 1989 SC 1433 and did his best to do so but was unable to remain present owing to reasons beyond his control. The judgment further holds that where the plaintiff urges that service on the defendant had taken place by registered post, though the presumption of service was rebuttable, the rebuttal could only be by “evidence of impeccable character”.

6. In the present case, the order dated 29th October 2021, issuing summons in the suit, directed service of summons by speed post and email. Mr. Khan, learned Counsel for the plaintiff/non-applicant has pointed out that service was, in fact, effected by both these modes. He has also drawn my attention to the speed post tracking report which indicates that the consignment was actually delivered at the address of the defendant. The email was also sent to arun.sharma828@gmail.com.

7. The application does not aver that arun.sharma828@gmail.com was not the email id of the defendant. Nor does Ms. Grover, who appears on behalf of the applicant, so state.

8. Ms. Grover sought to contend that the premises at the address, at which the speed post were delivered, was closed. This submission does not appear to be correct as the local commission was executed, in terms of the judgment and decree dated 6th September 2022, at the same address and the report of the local commissioner report is also on record.

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9. Ms. Grover sought to evoke the sympathy of the Court by stating that there was no reason for the applicant to remain absent before the Court and that the applicant was in dire family circumstances. In this context, Ms. Grover referred to the state of health of the defendant’s father and his wife. The averment in this context, as contained in paras 10 to 12 of the application, read thus:

“10. It is further submitted that the proprietor of the Defendant herein, is the sole bread earner and only caretaker of his family consisting of father Mr. Umesh Sharma, aged 66 years and wife Mrs. Meenakshi Sharma. The Defendant herein has been running between various Hospitals due to ill health condition of his father as well as complications in the pregnancy of the wife Mrs. Meenakshi Sharma. 11. The father of the Defendant has been keeping unwell since October 2019 and suffered 3 heart attacks in the recent past. The father of the Defendant suffered a fatal paralytic attack owing to multiple organ failure in the year 2020 and had to be hospitalized and was also admitted in Intensive Care Unit (ICU) from 18.09.2021 to 22.09.2021. Pursuant to consultation with various doctors and hospitals, it was learnt that the father of the Defendant had multiple organ failure and need great care. The Defendant has since been running from one hospital to another for the treatment of his father. True copies of the reports and prescription of the father of the Defendant are being annexed herewith as document A/3 (COLLY). 12. Further, the wife of the Defendant was also pregnant and was due for delivery in the month of March, 2022. Besides struggling to taking care of his father and getting him proper medical treatment, the Defendant was also regularly visiting hospital for periodic check-up of his wife. However, complications also arose in the pregnancy of the wife of Defendant due to which, the Defendant was physically as well as mentally occupied with the medical treatment of his both beloved family members. True copies of the doctors prescriptions/ medical reports of the wife of the Defendant Mrs. Meenakshi Sharma are being annexed herewith as Document A/4 (COLLY).”

10. By no stretch of imagination can it be said that the averments explained the continued absence of the defendant in the proceedings in the suit. They do not, therefore, disclose “sufficient cause” for the defendant’s absence.

11. This is commercial suit under the Commercial Courts Act, 2015. The latitude which is ordinarily available in proceedings under the CPC is not available to proceedings under the Commercial Courts Act. Strict compliance with the requirements of the Commercial Courts Act is the mandate. An application under Order IX Rule 13 can, therefore, be granted, even as per the law enunciated in Parimal[1], only where there is clear and irrefutable evidence of all steps having been taken by the defendant to remain present and of his having been unable to do so owing to circumstances beyond his control.

12. For the aforesaid reasons, the Court regrets its inability to entertain the present application. The application is accordingly rejected.

13. In view of the aforesaid view, the Court does not deem it necessary to continue with the proposed action for contempt proceedings against the defendant, which are accordingly disposed of.

C.HARI SHANKAR, J JANUARY 6, 2023

Cross Fit LLC v. RTB Gym and Fitness Centre

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