JUDGMENT : 1. On 8th January, 2018, the following order was passed:- “1. The applications of the defendants in both the suits for setting aside of the ex-parte decree of specific performance against the defendants are for consideration. 2. The counsel for the defendants has at the outset contended that the ex parte decree was passed in the same year in which the suit was filed. 3. There is no bar to the same and the same does not constitute a ground for setting aside of the ex-parte decree. Rather, it shows the lackadaisical attitude towards litigation having set in. 4. The counsel for the defendants has then contended that under the ex parte decree, the plaintiff was to deposit the balance sale consideration within two weeks and did not do so. 5. The same also would at best vest right under Section 28 of the Specific Relief Act, 1963 in the defendants and it cannot be a ground under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC). 6. The counsel for the plaintiff then wants to argue on the merits of the suit. 7. The same also is beyond the scope of Order IX Rule 13 of the CPC. 8. On enquiry, it is stated that both the defendants in both the suits are reported to be served through one Shiv and one K.G.S. Vardhman, employees of the defendant No.1 on 9th March, 2012 and on 23rd February, 2012 respectively; that one Himanshu Kapoor, Advocate appeared on behalf of the defendants in both the suits on 18th April, 2012 but neither filed Vakalatnama nor written statements and stopped appearing and which led to the defendants being proceeded against ex-parte. 9. On 20th November, 2017, after hearing the counsels on these applications, notice was ordered to be issued to Mr. Himanshu Kapoor, Advocate. 10. The counsel for defendants on enquiry states that in the Bar Directory of this Court two Advocates by name of Himanshu Kapoor are listed; that he contacted one, who denied having appeared in these cases, and the other one could not be contacted. 11. Per contra the counsel for plaintiff states that the Bar Directory lists only one Himanshu Kapoor, Advocate. 12. Neither counsel has particulars of the Bar Directory. 13. Mr. 11. Per contra the counsel for plaintiff states that the Bar Directory lists only one Himanshu Kapoor, Advocate. 12. Neither counsel has particulars of the Bar Directory. 13. Mr. Himanshu Kapur is reported to have been served on 13th December, 2017 and has filed a response stating that he is travelling from 22nd December, 2017 to 9th January, 2018 and was working as an associate with Zeus Law Associate now having office at 2, Palam Marg, Vasant Vihar, New Delhi-110057 and had appeared and made the statement as made before this Court in both the suits on 18th April, 2012, under instructions and that he had thereafter left Zeus Law Associate and joined another office. 14. Both counsels are oblivious of the said response. 15. Let notice be issued to Zeus Law Associate at 2, Palam Marg, Vasant Vihar, New Delhi-110057 without filing of process fee, returnable on 22nd February, 2018. 16. The counsels to also contact the partners of Zeus Law Associate and ask them to appear before this Court on the next date of hearing. 17. List on 22nd February, 2018. 18. The counsel for the plaintiff also states that the plaintiff has, within time, deposited the balance sale consideration in this Court. 19. Interim orders to continue.” 2. The partner of Zeus Law Associate appears and states that Zeus Law Associate Advocates, at the relevant time, were the advocates for the defendant no.1 in both the suits i.e. Gold Cause Constructions Pvt. Ltd. (GCCPL) and had entered appearance on receiving instructions from the defendant no.1 GCCPL and had appeared through their associate Mr. Himanshu Kapoor, Advocate. He has also handed over in Court a copy of the e-mail dated 25th April, 2012 sent to Mr. Ajay Verma (defendant no.2 in both the suits), informing him a) of having entered appearance in the Court on 18th April, 2012 and the Court having granted 30 days time to file reply to the suit and further cautioning that if the reply is not filed in the said time then the right to file reply will be closed; and, b) that the injunction order had been continued and seeking directions as to further course of action. 3. The aforesaid document is taken on record. The partner of Zeus Law Associate to need not appear further in this proceeding. 4. 3. The aforesaid document is taken on record. The partner of Zeus Law Associate to need not appear further in this proceeding. 4. The counsel for the defendants admits that Zeus Law Associate were the advocates for the defendant no.1 GCCPL at the contemporaneous time. It is however contended that Mr. Ajay Verma was not holding any position in the defendant no.1 GCCPL and was merely a shareholder of defendant no.1 GCCPL. 5. I have enquired from the counsel for the defendants, whether not he is appearing for Mr. Ajay Verma as well. 6. The counsel for the defendants initially denied but it is pointed out to him that Mr. Ajay Verma is the defendant no.2 in both the suits and the application has been filed by him on behalf of both the defendants. The counsel for the defendants now states that the affidavit accompanying the application is on behalf of the authorized signatory of the defendant no.1 GCCPL only. However on further enquiry, it is stated that it is nowhere stated in the application that Mr. Ajay Verma was not the authorized signatory of the defendant no.1 GCCPL. 7. It is now contended that Mr. Ajay Verma is settled abroad and was born abroad. 8. The counsel for the plaintiff points out that the agreements of which specific performance has been decreed are signed by Mr. Ajay Verma as the authorized signatory of the defendant no.1. 9. The counsel for the defendants now states that Mr. Ajay Verma at that time was the authorized signatory. 10. It is quite evident that the attempt of the defendants is to conceal everything from the Court and only make admissions of facts as a last resort, when caught on the wrong foot. 11. The counsel for the defendants next contends that the summons were not served on the defendants and thus the ex parte decree is liable to be set aside. 12. The counsel for the plaintiff points out that the summons served on the defendants also contain a report of the process server that the recipient had a telephonic conversation with Mr. Ajay Verma before accepting the summons. 13. The counsel for the defendants on enquiry states that he is not aware whether there is any such report or not. 14. The counsel for the plaintiff points out that the summons served on the defendants also contain a report of the process server that the recipient had a telephonic conversation with Mr. Ajay Verma before accepting the summons. 13. The counsel for the defendants on enquiry states that he is not aware whether there is any such report or not. 14. It is incumbent upon a person applying for setting aside of the ex parte order, on the grounds of the summons having not been served, to at least inspect the file of the Court and if finds a report of service of summons, to explain the same. 15. I have enquired from the counsel for the defendants, on what basis he states that summons had not been served. 16. The counsel for the defendants states that “because the signatures of the persons receiving the summons were not of the employees of the defendants”. 17. That indicates that the counsel for the defendants must have inspected the court file and must be aware of the report of the process server claimed by the counsel for the plaintiff. 18. In this view of the matter, it is deemed appropriate to rely on the statement of the counsel for the plaintiff rather than to spend time in checking the files for the said report. 19. The counsel for the defendants draws attention to Order III Rule 4 of the CPC and has relied upon G.P. Srivastava Vs. R.K. Raizada (2000) 3 SCC 54 and Reena Sadh Vs. Anjana Enterprises (2008) 12 SCC 589 . 20. While in para no.7 of G.P. Srivastava supra to which attention is drawn, it is only held that the Courts have wide discretion in deciding whether there is sufficient cause under Order IX Rule 13 of the CPC and that when the defendant approaches the Court immediately within the statutory time specified, the discretion is normally exercised in favour of the defendant provided that the absence was not mala fide or intentional, Reena Sadh supra was a case of the advocate appearing for some of the family members/defendants having also entered appearance for other family members/defendants but in whose favour no vakalatnama was filed and the Court having proceeded against ex parte against the said family members/defendants. The facts of Reena Sadh supra, where the advocate had taken upon himself to, while appearing for some of the family members, also appear for other family members, thus are not applicable to the present case. 21. Per contra, the counsel for the plaintiff has referred to Sandeep Industries Vs. Collector of Customs 2007 (93) DRJ 58 , Dhanraj Vs. Sunita 2015 SCC OnLine P&H 101 and Sunil Poddar Vs. Union Bank of India (2008) 2 SCC 326 to contend that the ground of non-service of summons for setting aside ex parte decree cannot be invoked after the defendant has entered appearance. 22. The defendants in the present case entered appearance through advocate who admittedly was the advocate for the defendants in other matters as well. The same thus leads to a presumption of the defendants having instructed the advocate to appear in these suits as well. Though the counsel for the defendants has sought to contend that the said advocate appeared without instructions but on enquiry from him whether he personally enters appearance on behalf of any person whom he may be knowing and without receiving any instructions, replies in the negative. Once the counsel says so about himself, it cannot be expected that the advocates as the advocates who were admittedly representing the defendants at the contemporaneous time, appeared without instructions. 23. The defendants are found to have not made a clean breast of the state of affairs. The defendants, in the applications for setting aside of ex parte decree, suppressed that Zeus Law Associate were their advocates at the contemporaneous time and that they had instructed them to appear. The defendants have offered no explanation for, after instructing Zeus Law Associate Advocates to appear, not giving them or any other Advocate instructions for defending these suits. On the contrary, the defendants have taken false grounds. The defendants chose to deny the very receipt of summons, that too on specious grounds, without placing before this Court list of all its employee and employees of other concerns also having office at the same address. Even during the hearing of the applications, the attempt to continue to misrepresent was not given up. The defendants chose to deny the very receipt of summons, that too on specious grounds, without placing before this Court list of all its employee and employees of other concerns also having office at the same address. Even during the hearing of the applications, the attempt to continue to misrepresent was not given up. The case of the defendants thus falls in the category of cases mentioned in Reena Sadh supra cited by the counsel for the defendants himself holding that ex parte decree should not be set aside when the conduct of the defendants is mala fide. 24. The defendants, for the aforesaid reasons, are also found to have sworn false affidavits and concealed facts from this Court and are for this reason also not entitled to be heard. 25. Order IX Rule 13 of the CPC permits setting aside of an ex parte decree if the defendant “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 use of the word ‘or’ indicates that the two grounds on which an ex parte decree is permitted to be set aside are not conjunctive but in the alternative. Thus, there may be a situation where even if summons was not duly served but the defendant otherwise had knowledge of the suit was prevented by sufficient cause from appearing when the suit was called for hearing. This becomes further clear from the second proviso to Order IX Rule 13 of the CPC which prohibits the Court from setting aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Thus even if it were to be believed that the persons to whom the summons are reported to have been served were not the employees of the defendant and/or were not authorized by the defendant to accept the summons, it stands established that the defendant had notice of the suit and had also instructed its then advocate to appear in the suits, thereby showing notice of the date of hearing within the meaning of second proviso to Order IX Rule 13 of the CPC. 26. 26. There is thus no ground lest sufficient cause for setting aside of the ex parte judgment and decree. 27. IA No.4959/2017 and IA No.4960/2017 are dismissed. 28. The need to consider the applications for condonation of delay in applying for setting aside of the decree viz. IA Nos.248/2018 and 247/2018 is not felt owing to the matter having been considered on merits.