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2023 DIGILAW 65 (HP)

Apex Marketing v. P. A. Times Industries

2023-01-13

TARLOK SINGH CHAUHAN, VIRENDER SINGH

body2023
JUDGMENT : Virender Singh, J. Appellant i.e. M/s Apex Marketing, has filed the present Letters Patent Appeal, under Clause 10 of the Letters Patent Act, as applicable to the High Court of Himachal Pradesh, against the order dated 28.05.2015, passed by the learned Single Judge, of this Court, in OMP No. 49 of 2014, in Civil Suit No. 43 of 2011. 2. By way of the order dated 28.05.2015 (hereinafter referred to as ‘the impugned order’) the learned Single Judge has dismissed the application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’). It is pertinent to mention here that vide order dated 28.05.2015, learned Single Judge has disposed of OMPs No.4 & 49 of 2014. 3. The parties to the appeal, are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned Single Judge. 4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:- 4.1. The plaintiff i.e. M/s P.A. Times Industries, had filed Civil Suit No. 43 of 2011, for recovery of Rs. 15,49,770/-, alongwith interest, against the defendant. The said suit had been filed on the ground that the plaintiff is a partnership firm under the name & style of M/s P.A. Times Industries, having its registered office at Kasauli Road, Dharampur, Tehsil Kasauli, District Solan, H.P., and deals with the business of assembling, manufacturing watches and also manufacturing plastic moulded goods, electronic items, machinery, moulded components, printed circuits, boards, batteries and other items. 4.2. The defendant used to purchase watches and spare parts from the plaintiff. The details of the goods purchased by the defendant have been given in the plaint, according to which, the outstanding amount has been shown to be Rs. 16,02,569/-. Some payment is stated to have been made by the plaintiff and the remaining amount of Rs. 15,49,770/- is stated to be due against the defendant. 4.3. Despite the legal notice, when, no response has been given by the defendant, then, the plaintiff has filed the present suit. 4.4. Thus, a prayer has been made to pass a decree in favour of the plaintiff and against the defendant, as claimed in the suit. 5. 15,49,770/- is stated to be due against the defendant. 4.3. Despite the legal notice, when, no response has been given by the defendant, then, the plaintiff has filed the present suit. 4.4. Thus, a prayer has been made to pass a decree in favour of the plaintiff and against the defendant, as claimed in the suit. 5. For the service of the defendant, when the case was listed before the learned Additional Registrar (J), on 09.04.2012, the following order has been passed by him, on the basis of the powers delegated to him, in this regard:- “Dasti summons issued to the sole defendant has been received back after service by way of affixation and it is reported that defendant has refused to accept the service and the same was affixed on the residence of Managing Director of M/s Apex Marketing. Refusal of acceptance of summons is deemed to be served. No one has put appearance on his behalf. Let, written statement be filed within three weeks.” 6. When the case was listed before the Court, on 01.06.2012, no one had put appearance on behalf of the defendant and, as such, the defendant was proceeded against ex-parte. Order dated 01.06.2012 reads as under:- “As per report of the Registry, the sole defendant was served for 13.03.2012, but none has put in appearance on its behalf and is accordingly proceeded against ex parte. The case be now listed for plaintiff’s ex-parte evidence on a date to be fixed by the Addl. Registrar (Judicial).” 7. Thereafter, the matter was listed for ex parte evidence. Consequently, the plaintiff had examined the Special Power of Attorney of the plaintiff as PW-1. Thereafter, the suit of the plaintiff was decreed, vide judgment and decree, dated 01.07.2013. 8. Thereafter, on 10th February 2014, the defendant had filed OMP No. 49 of 2014 under Order IX Rule 13 of the CPC, for setting aside ex-parte judgment and decree, dated 01.07.2013. The application has mainly been filed on the ground that the defendant was running its business from the rented premises, and thereafter, in the month of September, 2011, it had surrendered the possession of the said premises to the landlord. On 14.01.2014, the defendant came to know about the passing of the judgment and decree, dated 01.07.2013, from one Sh. Rajesh Kumar. 9. On 14.01.2014, the defendant came to know about the passing of the judgment and decree, dated 01.07.2013, from one Sh. Rajesh Kumar. 9. It is the specific case of the defendant that prior to 14.01.2014, he was not aware about the judgment and decree, dated 01.07.2013. It is the further case of the defendant that the report made on the summons by the Process-Server was false. 10. Elaborating its stand, it has further been stated that as per the order sheet, dated 09.04.2012, the affixation was done at the residence of Managing Director of the defendant-firm, not on the business premises. The report, on the summons, is also stated to be in violation of the provisions of Order V Rule 2 of the CPC. 11. Since, the application had been filed after the prescribed period of limitation, as such, a separate application, under Section 5 of the Limitation Act has also been filed. The said application has been registered as OMP(M) No. 04 of 2014. The delay in filing the application under Order IX Rule 13 of the CPC has been sought to be condoned mainly on the ground, as taken in the main application, under Order IX Rule 13 of the CPC. 12. Apart from this, it has also been pleaded in the application that the defendant came to know about passing of the judgment and decree dated 01.07.2013, for the first time, on 14.01.2014, therefore, the application under Order IX Rule 13 of the CPC is within limitation from the date of knowledge. Both the applications are duly supported by the affidavits of Sh. Najmul Haque. 13. On notice, both these applications were contested by the plaintiffs. 14. The application, under Section 5 of the Limitation Act (OMP(M) No. 4 of 2014), has been contested by taking preliminary objections that the application is not maintainable, as the same has been moved, at the belated stage. 15. On merit, the application has been contested on the ground that the stand, which has been taken by the applicant, in the application, is wrong, as the applicant was duly served and despite its service, it has failed to put appearance and contest the suit. 16. The other factual position, as mentioned in the application, has also been controverted and denied. The entire factual position, as mentioned in the application, has specifically been denied. 17. 16. The other factual position, as mentioned in the application, has also been controverted and denied. The entire factual position, as mentioned in the application, has specifically been denied. 17. Elaborating its stand, it has also been pleaded that the official of the defendant-company had been asking about the case proceedings of the present matter, many times, from the official of the plaintiff-company. 18. On the similar lines, the application under Order IX Rule 13 of the CPC has also been contested. 19. Thus, a prayer has been made to dismiss the applications under Section 5 of the Limitation Act as well as under Order IX Rule 13 of the CPC. 20. Defendant has filed the rejoinders, to the replies, filed by the plaintiff, to both the applications. 21. From the pleadings of the parties, the learned Single Judge has framed the following issues vide order dated 24.11.2014:- 1. Whether there are sufficient grounds for condonation of delay as occurred in filing the application for setting aside ex-parte decree passed on 1st July, 2013? …OPA. 2. If issue No.1 held in affirmative, does the application disclose sufficient grounds for setting aside the ex-parte decree or not? …OPA. 3. Relief. 22. Thereafter, the parties to the lis were directed to adduce the evidence. 23. After closure of the evidence and after hearing the learned counsel for the parties, the learned Single Judge has allowed OMP(M) No. 4 of 2014, condoning the delay in filing the application. However, OMP No. 49 of 2014, filed under Order IX Rule 13 of the CPC has been dismissed. 24. Feeling aggrieved from the said order, the present LPA has been filed on the ground that the learned Single Judge has wrongly held that the defendant has properly been served, in this case, vide dasti summons dated 25.02.2012, issued for 13.03.2012. 25. According to the appellant, as per the provisions of Order V Rule 2 of the CPC, every summon shall be accompanied by a copy of the plaint, whereas, the report, dated 25.02.2012 of the serving officer does not reflect that the copy of the plaint was attached with the notice. 26. The impugned order has also been assailed on the ground that the learned Single Judge has not considered the provisions of Order V Rule 17 and 19 of the CPC. 26. The impugned order has also been assailed on the ground that the learned Single Judge has not considered the provisions of Order V Rule 17 and 19 of the CPC. Those mandatory provisions have been stated to be ignored, while deciding the applications moved by the defendant. 27. The other ground of challenge is that the learned Single Judge has not considered the fact that the Process Server has neither sworn his affidavit nor made the declaration about the fact that the affixation had been done, in accordance with law. 28. Learned Single Judge has also stated to have not considered the fact that the defendant had vacated the place of business and thereafter, the Process-Server had allegedly visited the residential place of the Managing Director of the Company, who had refused to accept the notice, and there is no evidence on the file to prove the said facts. 29. On the basis of the above grounds, a prayer has been made to allow the appeal, by setting aside the order passed by the learned Single Judge and to allow the application under Order IX Rule 13 of the CPC. 30. Record perused. 31. When the Civil Suit was pending before the learned Single Judge, the sole defendant was ordered to be proceeded against ex parte, vide order dated 01.06.2012, as the same is stated to have been served for 13.03.2012. The address of the defendant, as per the Civil Suit, has been pleaded as under:- “M/s Apex Marketing, G-27, A.H. Complex, Exhibition Road Patna, Bihar-800001, through its Managing Director/Authorized Signatory.” 32. The summons, which were issued for 13.03.2012, contains the same address. As per the report made on the summons issued against the defendant, it has been mentioned by the Process Server that on 25.02.2012, he had gone to the spot, but, the said firm was found to be closed. It has been apprised to him from the employees of adjoining firm that the premises has been vacated and presently they are residing near Sanichra Masjid, Thana Sultan Ganj, Bihar. The process-server has further mentioned in the summons that he had gone there and Sh. R.S. Hashmi, father of respondent met him. He i.e. Process Server had requested him to accept the summons, but, the said person has refused to accept the notice, then, Process Server was compelled to affix the notice. Two persons, namely, Sh. The process-server has further mentioned in the summons that he had gone there and Sh. R.S. Hashmi, father of respondent met him. He i.e. Process Server had requested him to accept the summons, but, the said person has refused to accept the notice, then, Process Server was compelled to affix the notice. Two persons, namely, Sh. Amit Kumar and Ashok Kumar although were present there, but, had refused to be the witness. 33. On the summons, the Registrar had made the following report on 27.02.2012:- “Sir, The service is effected on the Respondent through affixing a copy of the notice at the gate/door of the respondent after being refused to receive the same by the Managing Director at his residence because the firm was vacated at the given address as reported by the Process Server.” 34. On the basis of the above report, the defendant, in this case, has been proceeded against ex parte. Perusal of the second part of the Court file shows that the suit was admitted on 20.07.2011 and notices were ordered to be issued for 29.09.2011. On 22.07.2011, the concerned Dealing Assistant has made the following report:- “Two notices in duplicate to the sole defendant through PSA as well as RAD alongwith copies thereof for 29.09.2011 are placed below for favour of signatures and issuance please.” 35. However, the Registered AD could not be dispatched, as, in terms of the report dated 23.07.2011, there was deficiency in the postal stamp. 36. Notice issued to the sole defendant through Process Serving Agency was not received back after service, then, a reminder was ordered to be issued to the District Judge, Patna. 37. On 15.12.2011, the Additional Registrar (J) passed the following order:- “Notice issued to the sole defendant through Process Serving Agency as well as through post has been received back unserved with the report that the house was found locked. It is requested by learned counsel for the plaintiff that dasti notice be issued for the service of sole defendant. Let, notice be issued dasti returnable for 13.03.2012, steps be taken within a week” 38. On the basis of the report made by the Process Server on the dasti notices, issued for 13.03.2012, the defendant was ordered to be proceeded against ex parte. Perusal of the order dated 15.12.2011 shows that no order was passed with regard to affixation of the summons. 39. On the basis of the report made by the Process Server on the dasti notices, issued for 13.03.2012, the defendant was ordered to be proceeded against ex parte. Perusal of the order dated 15.12.2011 shows that no order was passed with regard to affixation of the summons. 39. Provisions of Order V Rule 17 of the CPC are reproduced as under:- “17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and ‘whose presence the copy was affixed.” (Self emphasis supplied). 40. Admittedly, when the Process Server had gone to the address, as mentioned in the summons, the said premises was found to be locked. The Process Server, was informed that the premises has been vacated and the staff of the nearby firm apprised him that the owner of the firm had started residing near Sanichra Masjid, Thana Sultan Ganj, Bihar. Thereafter, the Process Server had gone to the said address, where, according to him, the house of the defendant was of Cream White Colour and Sh. R.S. Hashmi, father of the defendant met him. 41. Thereafter, the Process Server had gone to the said address, where, according to him, the house of the defendant was of Cream White Colour and Sh. R.S. Hashmi, father of the defendant met him. 41. In view of the report made by the Process Server, the material question, which arises before this Court, is about the fact as to whether the said service can be said to be the valid service in the eyes of law. 42. In the notices, the name of Managing Director and Authorized Signatory has not been mentioned. The premises of the defendant was found to be closed, rather, it has been apprised to the Process Server that the said premises has been vacated by the defendant, then his report, clearly demonstrates the unholy haste to affix the summons by the Process Server. 43. Beneath the report of the Process Server, Nazir, Civil Courts Patna, has given the endorsement, which reads as under:- “Affirmed before me by the above Peon on 27.02.2012 at 12:30 A.M./P.M. Sd/- Nazir Civil Courts, Patna.” 44. Bare reading of Order V Rule 15 CPC shows that the affixation can only be done if the conditions, as per Order V Rule 17 are fulfilled. 45. There was no occasion for the Process Server to affix the summons, as the summons were ordered to be issued to the address, which is situated in “A.H. Complex, Exhibition Road Patna Bihar”, not on the address regarding the alleged residence of the Managing Director of the defendant-firm. 46. In other words, it can be said that the service was not sought to be effected on the defendant at his residence. The same was ordered to be effected on his business premises. The proforma of the affidavit, which the Process Server was bound to sworn, has been prescribed in the CPC in Form No. 11. No affidavit, as per this proforma has been sworn by the Process Server. 47. Perusal of the record also shows that no efforts have been made to examine the serving officer, as per the provisions of Order V Rule 19 of the CPC, by this Court, before ordering to proceed ex parte against the defendant. It was mandatorily required for the Court to examine the serving officer as the facts have not been verified by the affidavit of the serving officer. 48. It was mandatorily required for the Court to examine the serving officer as the facts have not been verified by the affidavit of the serving officer. 48. Provisions of Order V Rule 19 of the CPC are reproduced as under:- “19. Examination of serving officer.- Where a summons is returned under rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” 49. In the affidavit of Sh. Najmul Haque, he has specifically mentioned that the possession of the rented premises, in which, he was running the business was surrendered to the landlord in the month of September, 2011. 50. The non-applicant/plaintiff has not bothered to summon the said process server in the witness box and simply filed the affidavit of the authorized representative i.e. Senior Manager Accounts, who has reasserted the stand, as taken in the reply to the application, under Order IX Rule 13 of the CPC, read with Section 5 of the Limitation Act. 51. The basic evidence, which the non-applicant/plaintiff could have produced, in this case, is the Process Server, who had allegedly gone with the summons to be served upon the defendant. The non-examination of the said witness gives an opportunity to this Court to draw an adverse inference against the case, set up by the non-applicant/plaintiff, qua the fact that the summons were duly served upon the defendant/applicant. 52. The requirement of the affidavit, as per Order V Rule 19 of the CPC has elaborately been discussed by the Bombay High Court in case titled as Baburao Soma Bhoi vs. Abdul Raheman Abdul Rajjak Khatik, reported in 1999 LawSuit(Bom) 119. 52. The requirement of the affidavit, as per Order V Rule 19 of the CPC has elaborately been discussed by the Bombay High Court in case titled as Baburao Soma Bhoi vs. Abdul Raheman Abdul Rajjak Khatik, reported in 1999 LawSuit(Bom) 119. The relevant Paras-8 and 9 of the judgment is reproduced, as under:- “Rule 19 of Order 5 of Code of Civil Procedure requires that in case it is returned without verification by way of an affidavit, then, the Court shall record the statement of the process server and thereafter making further inquiry shall state whether the summons has been duly served or not, and therefore, option to make the inquiry may arise when the affidavit has been accompanied the said summons because in the later part of the said Rule word “may” has been used. In the result, while Court made the endorsement that it is duly served proceed ex parte, as stated in the earlier part of the judgment, the Court has not recorded the statement of the Bailiff as required under Rule 19 and without recording the statement of the Bailiff it has been declared that the summons has been duly served on the present petitioner-defendant and therefore there is no proper service. The suit should not have been proceeded ex parte. Not only as there is no service in law on the petitioner-defendant that is valid ground for condonation of delay because in that eventuality the petitioner is not aware of any part of the proceeding. Therefore, the order passed by both the Courts below are not just and proper and therefore, the same are required to be set aside.” 53. In the report of the Process Server, as made on the summons, which were issued against the defendant, for 13.03.2012, there is no endorsement stating the circumstance, under which, he had affixed the summons. The Process Server has also failed to mention the names and addresses of the persons, by whom, the residential address of the Director of the defendant was disclosed to him. 54. Although, the Process Server has mentioned the names of Sh. Amit Kumar and Sh. Ashok Kumar, who had witnessed the alleged act of R.S. Hashmi to refuse to sign the summons, but, he has failed to mention the address of those persons. 54. Although, the Process Server has mentioned the names of Sh. Amit Kumar and Sh. Ashok Kumar, who had witnessed the alleged act of R.S. Hashmi to refuse to sign the summons, but, he has failed to mention the address of those persons. In such situation, this Court has no hesitation to hold that the provisions of Order V Rule 17 of the CPC have not been followed in this case. 55. As stated above, before proceeding ex-parte against the defendant, no efforts have been made by this Court to examine the Process Server. It was obligatory upon this Court to comply with the provisions of Order V Rule 17 of the CPC. The legislature, in its wisdom has vested the jurisdiction in the Court to examine the serving Officer, even if the report of the serving Officer is supported by an affidavit. 56. Bare reading of Order V Rule 19 of the CPC, mandates that before declaring the fact that the summons have been duly served, it was obligatory for this Court to examine the Process Server, on oath, as the requisite affidavit has not been sworn by the Process Server. The report made by the Nazir, over the summons, does not fulfill the mandatory requirement of Order V Rule 19 of the CPC. 57. According to the provisions of Order V Rule 17 of the CPC, which is reproduced above, the legislature in its wisdom has used the words “where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving Officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be affected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time, and there is no agent empowered to accept service of summons on his behalf.” 58. The prayer of the applicant/defendant in this case is also liable to be accepted, on the ground, that the summons were ordered to be served upon the defendant on the address of his establishment. The summons were not issued at the residential address of the Managing Director of the defendant-Company. 59. The prayer of the applicant/defendant in this case is also liable to be accepted, on the ground, that the summons were ordered to be served upon the defendant on the address of his establishment. The summons were not issued at the residential address of the Managing Director of the defendant-Company. 59. In this case, learned Single Judge has allowed the application under Section 5 of the Limitation Act by holding that the Managing Director of the applicant/defendant had no knowledge of the passing of the decree dated 01.07.2013, however, it has been held that it cannot be believed that the Managing Director of the applicant/defendant had no knowledge about the pendency of the suit. While allowing the application under Section 5 of the Limitation Act, the learned Single Judge has condoned the delay in filing the application under Order 9 Rule 13 of the CPC. 60. The findings of the learned Single Judge has also been assailed by the appellant by way of the present LPA, whereas, the plaintiff/non-applicant has not bothered to challenge the findings of the learned Single Judge on issue No.1 nor the cross-objections have been filed. Meaning thereby, those findings have attained the finality. 61. Once the applicant/defendant is held to be not having the knowledge of the decree dated 01.07.2013, then, there is nothing on the record, even to demonstrate that the Managing Director of the applicant/defendant-firm was having the knowledge of the suit filed against the defendant-firm. 62. In this case, it has been held that the mandatory provisions of Order V Rule 17 & 19 have not been complied with by the Process Server, then from any stretch of imagination, it cannot be held that there were mere irregularities in the service of the summons. As such, the case law as relied upon by the learned Single Judge i.e. Sushil Kumar Sabharwal vs. Gurpreet Singh & Ors. (2002) 5 SCC 377 , in no way, helps the case of the nonapplicant/ plaintiff. 63. The Managing Director of the applicant/defendantfirm has given his address in the affidavit as under:- “Najmul Haque Hashmi, S/o Sh. Raisul Haque Hashmi, R/o Dargah Road, New Azimabad Colony, Sanichra, Police Post Bahadhurpur, Patna, Sampatchak, Patna, Bihar-800006.” 64. The same address has been given in the affidavit filed in support of OMP No. 49 of 2014 as well as in OMP No. 4 of 2014. 65. Raisul Haque Hashmi, R/o Dargah Road, New Azimabad Colony, Sanichra, Police Post Bahadhurpur, Patna, Sampatchak, Patna, Bihar-800006.” 64. The same address has been given in the affidavit filed in support of OMP No. 49 of 2014 as well as in OMP No. 4 of 2014. 65. No doubt, in the affidavit filed in support of the application, under Order IX Rule 13 of the CPC, Sh. Najmul Haque Hashmi has given his address as under:- “Najmul Haque Hashmi, S/o Sh. Sandalpur Behind Shanichra Mandir, Near Mobile Tower Mahendru, Patna, Bihar.” 66. The same address has been mentioned in the affidavit filed in support of the application under Section 5 of the Limitation Act. 67. Alongwith the affidavit filed with the rejoinder, the photocopy of the Aadhar card has also been mentioned, which contains the address as under:- “Najmul Haque Hashmi, S/o Sh. Raisul Haque Hashmi, R/o Dargah Road, New Azimabad Colony, Sanichra, Police Post Bahadhurpur, Patna, Sampatchak, Patna, Bihar-800006.” 68. Variation, so highlighted by the learned Single Judge, to the considered opinion of this Court is liable to be ignored keeping in view the low legal literacy of Indian masses, as no benefit could be derived by the Managing Director of the applicant/defendant-firm, had the person, who was in the helm of the affair being in the knowledge of the pendency of the suit against the applicant/defendant-firm. Moreover, the Court has to adopt a liberal approach in such matters, as the lis between the parties is to be decided on the merits not on the technical grounds. 69. Considering all these facts, this Court is of the view that the defendant, in the present case, has not duly been served. As such, the appeal is allowed by setting aside the ex parte judgment and decree dated 01.07.2013 and Civil Suit No. 43 of 2011, is ordered to be restored to its original number, subject to deposit of 25% of the amount, sought to be recovered by the plaintiff, in this case, within a period of one month from the date of appearance in this case, failing which, application under Order IX Rule 13 of the CPC shall be deemed to have been dismissed. 70. The amount, so deposited, shall be invested in the shape of FDR and shall be subject to the final outcome of the decree, which ultimately would be passed in this case. 71. 70. The amount, so deposited, shall be invested in the shape of FDR and shall be subject to the final outcome of the decree, which ultimately would be passed in this case. 71. In view of the notification No. HHC/PJ/93-1-28469- 82, dated 17.10.2022, the pecuniary jurisdiction of the Civil Courts in Himachal Pradesh has been increased. As such, the suit is ordered to be transferred to the Court of learned Civil Judge, Kasauli. 72. The learned Civil Judge, Kasauli, H.P., is directed to secure the presence of the parties and proceed further from the stage of affording the opportunity to the defendant to file the written statement and decide the matter, as per law. 73. Record be sent to the Court concerned. 74. Pending miscellaneous application(s), if any, also stand disposed of.