Order 5

Order Details: COPY OF ORDER
Pdf Text: 37 Misc SCJ 61/24
M/S JAINSONS LIGHT PVT LTD Vs. M/S AAKSHEE ELEC
SOLUUTINS PVT LTD
05.08.2024
Present : None for applicant.
Sh. Deepanshu Gupta, Ld. counsel for respondent.
ORDER ON APPLICATION UNDER ORDER IX RULE 13
CPC
1. Vide this order, I shall decide the application under Order
IX Rule 13 CPC moved on behalf of the defendant for
setting aside the ex-parte decree dated 01.07.2023.
2. Before proceeding further, it is pertinent to refer to Order
IX Rule 13 CPC. It reads thus as under :
“
Setting aside decree ex parte against defendants. - In any
case in which a decree is passed ex parte against a
defendant, he may apply to the Court by which the decree
was passed for an order to set is aside; and if he satisfies the
Court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the
suit was called on for hearing, the Court shall make an order
setting aside the decree as against him upon such terms as to
costs, payment into Court or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit”.
3. Thus, Order IX Rule 13 CPC provides two grounds for
setting aside the ex-parte decree. First being that summons
were not duly served upon the defendant and the second
being that though the summons were duly served,
defendant was prevented by any sufficient cause from
appearing when the suit was called for hearing.
M/S Jainsons Light Pvt Ltd Vs. M/S Aakshee Elec Soluutins Pvt Ltd
Misc SCJ 61/24
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4. In the present case, the ground pleaded for setting aside the
ex-parte decree dated 07.09.2022 is that the summons were
not duly served upon the defendant. It is submitted by the
Ld. Counsel for the applicant/defendant that the present
case was instituted on 16.12.2019 and summons were
ordered to be issued on 24.04.2020. That during the period,
the entire nation was affected with the pandemic and to
curb the spread of Covid virus , nationwide lockdown was
imposed towards the end of March 2020. That the
defendant was served with the summons through his wife,
however, there was a matrimonial dispute between the
defendant and his wife, and they were living separately
from each other, and the defendant was not residing on the
property bearing number B-207, Vardhaman Apartment,
Mayur Vihar, phase 1, Delhi - 110091. That the defendant
and his wife completely stopped talking to each other, but
subsequently with the intervention of some relatives in the
year 2021, there resolved the entire dispute and the
defendant returned back to the above said address. That
only when the defendant received the notice under
execution number, 498/2023, the defendant came to know
about the suit creed against him on 07.09.2022. That the
defendant contacted an advocate and took appropriate
steps to file the present application.
5. In reply to the present application, plaintiff has denied the
averment of the defendant and stated that the present
application is only the process to harass the plaintiff as the
M/S Jainsons Light Pvt Ltd Vs. M/S Aakshee Elec Soluutins Pvt Ltd
Misc SCJ 61/24
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decree was passed on 07.09.2022, and the application has
been filed on 27.02.2024, which is barred by limitation.
That the summons were affected on the defendant at its
suggested office through his wife, who is one of the
directors. That the defendant was served on 07.01.2020,
and there was no lockdown as the same was imposed in the
last week of March 2020. That the only ground taken by
the applicant is that there was some matrimonial dispute
between one of the director of the defendant, but even if
there was any dispute, service to the director at registered
office is a valid and legal service.
6. I have heard the arguments and perused the record.
7. In the present case, perusal of the report of Process Server
dated 09.01.2020 shows that summons were received back
with the report “Served through wife”. On the basis of this
report, defendant was deemed to be served on 09.01.2020.
8. The defendant in the present case has denied the receipt of
summons as there was a matrimonial dispute between the
defendant and his wife, and they were living separately
from each other, and the defendant was not residing on the
property.
9. In the present case, perusal of the Process Server report
dated 09.01.2020 shows that the summons were served
upon the defendant through her wife but there was a
matrimonial dispute between the defendant and his wife,
and they were living separately from each other, and the
defendant was not residing on the property bearing number
M/S Jainsons Light Pvt Ltd Vs. M/S Aakshee Elec Soluutins Pvt Ltd
Misc SCJ 61/24
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B-207, Vardhaman Apartment, Mayur Vihar, phase 1,
Delhi - 110091. Thus, the defendant cannot be said to have
been duly served. Therefore, the impugned decree dated
07.09.2022. must be set aside as the defendant did not have
an opportunity to present his case before the Court.
10. Accordingly, application under Order IX Rule 13 CPC
stands allowed. The ex-parte decree dated 07.09.2022. is
set aside subject to cost of Rs. 8,000 payable to plaintiff on
or before the NDOH.
11. Let WS be filed, subject to limitation period with advance
copy to opposite side against receipt, after which,
replication, if any, be filed on the NDOH with advance
copy to opposite side against receipt.
12. List for completion of pleadings/further proceedings on
10.09.2024.
(Sahil Gupta)
CJ-07(C)/THC/Delhi/05.08.2024
M/S Jainsons Light Pvt Ltd Vs. M/S Aakshee Elec Soluutins Pvt Ltd
Misc SCJ 61/24
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