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2013 DIGILAW 695 (RAJ)

Jaskaran Singh v. The Bank of Baroda

2013-04-05

VIJAY BISHNOI

body2013
JUDGMENT 1. - This appeal is preferred by the appellant against the order dated 30.09.2005 passed by learned Additional District Judge No.2, Sri Ganganagar in Civil Misc. Case No. 27/2003, whereby the learned trial court has rejected the application preferred on behalf of the appellant for setting aside the exparte decree dated 06.11.2001 passed by Additional District Judge No. 2, Sri Ganganagar in Civil Suit No.56/1996. 2. Brief facts of the case are that the appellant, who is a medical practitioner by profession, had obtained a loan from the respondent-bank for purchasing a car. In the loan application form, the respondent No.2 was stood as guarantor for the appellant, and loan for a sum of Rs. 79,000/- was sanctioned to the appellant. The appellant was not regular in repaying the loan amount and, therefore, the bank filed a suit for recovery of the remaining loan amount. Summonses of the suit were issued to the appellant as well as the respondent No.2, who stood as guarantor for the appellant. The summonses of the suit were served upon the respondent No.2, however, the same were not served on the appellant as it was reported that the appellant was not residing on the address for which the summonses were issued. The respondent-bank moved an application before the trial court for substituted service upon the appellant by way of publication. The said application was allowed by the trial court and after publication of the notice in the news paper, exparte proceedings were initated against the appellant and, thereafter, the exparte decree was passed against the appellant on 06.11.2001. The appellant filed an application under Order 9 Rule 13 CPC before the learned trial court for setting aside the exparte proceedings and the exparte decree dated 06.11.2001. The said application was contested by the bank and the learned trial court, after hearing the parties, rejected the said application vide order dated 30.09.2005. Hence, this appeal. 3. The learned counsel for the appellant has urged that the learned trial court had not taken any steps to serve the summons of the suit upon the appellant in ordinary course and has straightway allowed the substituted service. Hence, this appeal. 3. The learned counsel for the appellant has urged that the learned trial court had not taken any steps to serve the summons of the suit upon the appellant in ordinary course and has straightway allowed the substituted service. It has also been contended by the learned counsel for the appellant that the substituted service, as accepted by the learned trial court, was also not sufficient as the news paper in which, the summonses were published, was not a widely circulated news paper and had no circulation over the place where the appellant was residing. The learned counsel for the appellant has, therefore, urged that the learned trial court has not taken into consideration all the aspects and has wrongly rejected the application preferred on behalf of the appellant for setting aside the exparte decree. 4. This Court has considered the submissions made on behalf of the respondents and has also examined the record. 5. The learned trial court has observed that the summons for the appellant was sent on the address, which was provided by him in the loan application form. When the said notices were sent, it was reported that the person, who was residing on the said address, had left the house and therefore, the court has ordered for substituted service. Learned trial court has further observed that summons of the suit was published in the news paper, widely circulated in the area and also observed by the learned trial court that the appellant had not produced any evidence to the effect that he had informed about the change of address to the bank at any point of time. The learned trial court found that the news paper 'Pratap Kesari', in which the summons of the suit was published, was widely circulated news paper in the District, Sri Gangangar and North-West Rajasthan. The appellant has failed to produce any evidence before the trial court to the effect that the news paper, in which the summons was published, was not a widely circulated news paper. It has also been observed by the learned trial court that the notice of execution of the decree was served upon the appellant on 20.09.2003, however, the appellant had thereafter filed the application for setting aside the exparte decree on 05.11.2003, beyond the period of limitation. It has also been observed by the learned trial court that the notice of execution of the decree was served upon the appellant on 20.09.2003, however, the appellant had thereafter filed the application for setting aside the exparte decree on 05.11.2003, beyond the period of limitation. After observing the said circumstances, the learned trial court has rejected the application preferred by the appellant under Order 9 Rule 13 CPC for setting aside the exparte decree. 6. The contention of the appellant that he started residing at Chak 14 TK of Tehsil Raisinghnagar and no notice on the said address was served upon him is not tenable as the respondent-bank gave the same address of the appellant in the plaint, which was furnished by the appellant in the loan application form and the appellant had not contended that he had informed the bank regarding change of address at any point of time. Moreover, the appellant has also failed to prove before the trial court that the news paper, in which the summons of the suit was published, was not a widely circulated news paper and therefore, he was not aware about the pendency of the suit. It is not also out of the subject to mention here that the respondent No.2, who stood as guarantor for the appellant was the real brother of the appellant and his address in the plaint was given as Chak 14 TK of Tehsil Raisinghnagar, the place which the appellant claimed to be of his new address. The respondent No.2 refused to receive the summons sent to him through the trial court. All these circumstances clearly indicate that the appellant has failed to show sufficient cause for setting aside the exparte proceedings and the exparte decree. 7. In view of the overall facts and circumstances of the case, this Court does not find any illegality in the impugned order dated 30.09.2005 passed by the learned trial court. Consequently, the appeal fails and is hereby dismissed.Appeal Dismissed. *******