Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.698 OF 2020
IN
SHORT CAUSE SUIT NO. 925 OF 2015
Dinesh Sampatraj Mehta ...Plaintiff.
Versus
Jaipalan S. Pillai ...Defendant.
Appearance:
Advocate Mr. Krishnagopal S. Tripathi for the Plaintiff.
Advocate Mr. Pavan S. Patil for the Defendant.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 16th September, 2021
ORDER
This notice of motion has been taken out by the defendant
for setting aside the decree passed in Suit No.925/2015 dated
11.6.2018.
2. According to defendant, there was in fact no need to file
any suit by the plaintiff against him. The suit No.925/2015 was
without any cause of action. It was time barred suit. No summons was
received to him. On 27.7.2019, when the bailiff of Pune Court visited
his premises, he came to know of passing of a decree in the suit against
him. No opportunity of hearing was given to him as summons of the
suit was not duly served on him. The service of summons by RPAD was
not proper and legal. On getting knowledge of passing the decree,
immediately he moved to the Court. He asked to condone the delay of
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163 days in filing the N/M and set aside the exparte decree dated
18.6.2018.
3. The plaintiff by filing his reply objected the N/M. He
denied that suit was time barred and without any cause of action.
According to him, the summons was duly served on the defendant on
his given address. Defendant willfully refused to accept the summons
sent by RPAD. It was proper, legal and valid service of summons on
defendant. Despite duly served with suit summons, defendant chose
not to appear and contest the suit. The decree passed is proper and
legal. The plea that on receipt of notice of executing proceeding,
defendant came to know about the passing decree in the suit is false.
Defendant was well aware of filing of suit. From time to time, he was
informed by the Advocate of the plaintiff about the stages of the suit
and also passing of the decree. But he ignored. The cause given for
condoning the delay is unsatisfactory. There is no reason to set aside
the decree, as passed after giving full opportunity of hearing to the
defendant. The plaintiff asked to dismiss the N/M.
4. Heard both Perused the N/M, reply and the record. On its
basis, following points rise for the determination and the findings to
each of them for the reasons recorded as below.
Sr.No. POINTS FINDINGS
1. Whether the defendant was duly served
with the writ of summons of the suit
No.925/2015
Yes.
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2. Was there any sufficient cause which
prevented the defendant from appearing
in the suit, when the suit was called on
for hearing
No.
3. What order ? N/M is disallowed.
Reasons:
As to Point Nos. 1 & 2 :
5. The defendant has claimed that he was not duly served
with the suit summons. He claimed that he resides at Pune, outside the
jurisdiction of this Court. Therefore, it was incumbent on the part of
plaintiff to serve him with writ of summons through bailiff of Pune Civil
Court. The service of summons on him by Registered Post was not
proper and justified. He relied on the observations of Hon'ble Bombay
High Court in case of The New India Assurance Co. Ltd. V/s. Smt.
Nasibunisa Mohd. Israr Khan & others, Civil Appliction No. 1979 of
2011 (First Appeal (Stamp) No.13185 of 2011). In it the Hon'ble
High Court has opined that the basic mode of service of summons under
Rule 9 of CPC is through proper officer of the Court or its subordinate.
The same has also been observed by the Hon'ble Apex Court, in case of
Indu Bhushan V/s. Munna Lal & Ors., (2007) 14 SCC 42. In case of
New India Assurance in addition to service of notice through the Court,
the Advocate for the applicant was asked to serve the respondent by
private notice through RPAD. The Hon'ble High Court opined that Sub
rule(4) of Rule 9A Order 5 of CPC provides that refusal of service of
summons cannot be accepted as service and the summons is required to
be reissued in such case. A perusal of the facts of the present case, it is
seen that writ of summons was sent to defendant by RPAD through the
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Court. It is not the case that writ of summons was served on defendant
by private service. The writ of summons sent by the Court by RPAD,
was returned back with the postal remark “refused to accept by the
addressee” i.e. defendant. There is no dispute the address given on the
notice was not the correct address of the defendant. Subrule (4) Rule
9 Order 5 of CPC provides that, if the defendant resides out of the
jurisdiction of the Court then in that case he may be served by
Registered Post A.D. When the defendant is admittedly residing outside
the jurisdiction of the Court, serving the summons by RPAD by the
Court with the aid of subrule 4 Rule 9 Order 5 of CPC is a good and
valid service of the summons on defendant. It appears that the
observations of the Hon'ble High Court in case of New India Assurance
are based on the old unamended provisions of CPC. By virtue of an
amendment of the year 2002 with effect from 01.07.2002 in CPC, if the
defendant resides outside the jurisdiction of the Court, he may be
served with writ of summons by Registered Post A.D.
6. Ld. Advocate for the plaintiff relied on the following
pronouncements of different High Courts and Hon'ble Apex Court.
1) Maung San Bwin V/s. Maung Nyi AIR 1925 Rangoon 325.
2) Gobindjee Madhwajee and Co. Ltd. V/s. C.J. Smit, AIR 1928
Patna 568.
3) K.A. Desai & Co. V/s. Vijaysinhji Bhimsinhj, AIR 1954
Saurashtra 84.
4) C.K. Lokesh V/s. P.E. Panduranga Naidu, (1996) 11 SCC
353.
5) G.P. Srivastava V/s. R.K. Raizada & Ors., (2000) 3 SCC 54.
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6) Sushil Kumar Sabharwal V/s. Gurpreet Singh and Ors.,
(2002) 5 SCC 377.
It appears that the observations in the cited cases are prior
to the amendment of 2002 in CPC, which brought into force from
1.7.2002. After dated 01.07.2002, if the defendant is residing outside
the jurisdiction of the court, service of summons of suit on defendant by
RPAD is proper and valid service of summons.
7. A perusal of the record of the suit, it is appearing that the
summons was sent to the defendant in two envelopes containing the
copy of plaint and documents. But he refused to accept both the
envelopes. And therefore, with postal remark dated 23.4.2015 the same
returned to the Court. The affidavit of Shri G.R. Mhatre of the Board
Department of City Civil Court, Mumbai goes to show that it was valid
and proper service of summons on defendant on his correct address of
Pune.
8. The record also discloses that prior to dated 23.4.2015 on
12.01.2015 the defendant had accepted the suit notice of plaintiff on
the same address, on which the summons was sent. Moreover, the Ld.
Advocate for the plaintiff pointed out that on later occasions also, the
Advocate of the plaintiff informed the progress of the suit to the
defendant by RPAD. The various postal envelopes of RPAD
communication go to show that even though the suit summons sent by
the Court was refused to accept by the defendant, the Advocate of the
plaintiff was intimating the stages of the suit to the defendant by RPAD.
After passing of the decree dated 11.6.2018 also, the defendant was
informed about honouring the decree vide communication made by
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RPAD. Said communication was also refused to accept by the
defendant. Thus, there is not only the service of summons by RPAD
from the Court, but there was also service of private notice on the
defendant. Despite such modes of service, the defendant ignored the
same and not appeared in the Court. The efforts taken by the plaintiff
go to show that a full opportunity of hearing was given to the defendant
to appear in the suit and contest the same. Had it been only the service
of private notice of the Advocate of the plaintiff on defendant, then it
could have been said to be improper and invalid service of summons.
But when the defendant was duly served with the suit summons sent by
the Court through RPAD and also by way of private service of Advocate
for plaintiff, it was proper and valid service of summons/notice of the
suit on defendant. It cannot be said that the defendant was not duly
served with suit summons.
9. According to the defendant, from the service of notice of
Execution Application No. 150/2018 by the officer of the Civil Court
Pune dated 22.7.2019, he came to know of the filing of the suit and
passing of the decree in the suit. Thereafter, he collected the
documents and certified copies from the Court and filed present Notice
of Motion. The Notice of Motion has been filed on 24.2.2020. A
perusal of the copy of decree, it is appearing that it was received by the
defendant on 10.1.2020. It was applied on 18.12.2019. The fact that
on 22.7.2019, according to defendant, he got the knowledge of the
passing of the decree in suit. Even assumed that on 3.8.2019, when he
appeared before the Executing Court, he got the knowledge of the
decree dated 11.6.2018 the fact that since 03.08.2019 till 18.12.2019,
defendant did not take appropriate steps. He took the period of 4
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months even for applying the certified copy of the decree. Therefore,
the explanation that after getting knowledge of the passing of decree on
22.7.2019 / 03.08.2019, it took time for him to get certified copy of the
decree, is not satisfactory and convincing. Basically, the defendant was
very well served with the suit summons on 6.5.2015, when he refused
to accept the summons. It goes to show that he was well aware of the
date of hearing of the suit dated 11.6.2018, on which the suit came to
be decreed. The delay of so called 163 days cannot be condoned,
because the explanation given of the period in between 3.8.2019 to
12.2.2020, is not satisfactory. No application was moved within 30
days even from the date of knowledge of passing of the decree in suit
i.e. 3.8.2019. In case of Esha Bhattacharjee V/s. Managing
Committee of Raghunathpur Nafar Acadmy & Others, (2013) 12
SCC 649, the terms 'sufficient cause' has been explained by the Hon'ble
Apex Court.
10. In case of Nahar Enterprises V/s. Hyderabad Allwyn Ltd.
& Another, (2007) 9 SCC 466, it was observed that the application for
setting aside the decree was wrongly dismissed. In said case, it was
observed that the second part of Article 123 of Limitation Act was
applied. In present case, 03.08.2019 was the date of knowledge of
passing of decree to the defendant. Still, the application was not filed
within 30 days from 03.08.2019.
11. In case of Sudheer Govind Vaidya V/s. Manoj Govind
Vaidya, Notice of Motion No. 1400 of 2014 in Summary Suit No.260
of 2010, while setting aside the decree, the Hon'ble High Court had
observed that the suit was time barred. But a perusal of Rule 13 Order
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9 of CPC, it appears that the Court is required to consider two
circumstances that whether summons was duly served on the defendant
or not or whether there was any sufficient cause which prevented the
defendant from appearing in the suit when suit was called on for
hearing. It may not be proper to consider merits of the suit, while
entertaining the application under Rule 13 Order 9 of CPC.
12. Thus, the defendant neither could demonstrate that the
summons was not duly served on him, nor, he could establish that there
was sufficient cause which prevented him from appearing in the court,
when the suit was called on for hearing on 11.6.2018. Hence,
answering points Nos.1 & 2 in the negative, following order is passed.
ORDER
Notice of Motion No. 698 of 2020 is disallowed with costs and
accordingly disposed off.
Dated : 16.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 16.09.2021
Transcribed on : 20.09.2021
Signed on : 29.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 29.09.2019 5.50 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
16.09.2021
JUDGMENT /ORDER signed by P.O. on 29.09.2021
JUDGMENT /ORDER uploaded on 29.09.2021
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