Hartlay Knits vs A.C.S. Logistics and Others

Shiv Narayan Dhingra, J.—This application has been made under Order 9 Rule 13 CPC by the applicant/defendant No. 1, DVH Industries for setting aside judgment/decree dated 10th December, 2007. In the application, the applicant has talked more about the merits of the case which need not be discussed here. Regarding reasons for setting aside the decree, the applicant has stated that he was informed about the decree by Coronet, i.e., defendant No. 3 in the original suit (defendant No. 2 as per amended memo of parties). It was told that the matter was listed on 10th December, 2007 and order was passed. Immediately applicant/defendant requested his earlier counsel to make an inquiry and get the order. The application is however conspicuously silent as to when the applicant was informed by the Coronet that the matter was listed on 10th December, 2007. Further averment made by the applicant is that on inspection of record by his counsel, it was noticed that the suit was dismissed in default on 20th September, 2005 and was later on restored on an application under Order 9 Rule 9 CPC made by the plaintiff. It is stated that no notice of this application was served upon the defendant/present applicant and this Court vide its order dated 31st July, 2006 specifically noted that the suit was restored due to non-opposition of the application by defendant No. 1. However, no notice was issued to the defendants No. 2 and 3 while restoring the suit. This Court, therefore, ordered for issuance of fresh notice to the defendants No. 2 and 3. Fresh summons were issued. plaintiff filed an affidavit that the defendant was served with fresh summons through courier on 26.7.2007. On the basis of this affidavit of the plaintiff, defendant was proceeded ex parte. It is pleaded that the applicant never received the notice. However, applicant came to know of listing of the suit on 11th December, 2007 and immediately took necessary steps through mother of the President of the applicant company. It is stated that there was no deliberate non-appearance of applicant as no notice of hearing was served upon the applicant.

In reply to the application, the plaintiff/non-applicant has submitted that the application was time barred. After restoration of the suit, defendant No. 1 was again served through summons and e-mail vide order of the Joint Registrar dated 27.7.2007 and 13.8.2007. The Joint Registrar after satisfying the proper service of the defendant/applicant passed an order about the defendant having been served and this Court therefore passed an order proceeding defendant ex parte. The application was filed by the applicant on 15th January, 2008 much beyond the period of limitation and was liable to be dismissed. The applicant/defendant has not at all explained the delay in filing of the restoration application.

A perusal of record would show that after filing of the suit, the applicant�s effort had been to delay the proceedings as far as possible. On 6th November, 2000 the applicant was being represented by Mr. Suresh Dhobal and an adjournment was sought. Again thereafter nothing was done on behalf of the applicant and an adjournment was sought on 3rd May, 2001. Even WS was not filed despite adjournments having been sought for this purpose. When the matter was taken up in July, 2001 still WS was not filed and the counsel appearing for the applicant told the Court that she had not received full instructions and she would make a statement on next date of hearing. On 6th August, 2001, again the same plea was taken that she had no full instructions and sought more time. On 10th September, 2001, again counsel for the applicant sought more time to seek instructions. This Court vide order dated 4th September, 2002 disposed of an application made by the plaintiff observing that the stand taken by the applicant that it was not holding any amount on behalf of the plaintiff was dishonest. This Court injuncted the applicant from making payment of the amount to any other person and directed it to remit the amount of US$76,928.49 in the name of the Registrar of this Court. Against this order, the applicant preferred an appeal before the Division Bench being FAO(OS) 311/02 and this appeal was dismissed on 06.02.2003 upholding the order of the learned Single Judge. Against the order of Division Bench, the applicant preferred an SLP being SLP No. 8816/03. This SLP was withdrawn by the applicant vide order dated 14th August, 2003 by making a statement that the applicant would seek a review of the impugned order. After dismissal of the SLP of the applicant, this suit vide order dated 19th August, 2003 was transferred to the District Court and in the order dated 19th August, 2003, passed in presence of counsel for the applicant, the applicant was specifically told to appear before the District and Sessions Judge on 6th November, 2003. The applicant did not appear before the District Judge on the date given to the applicant and a Court notice was ordered to be issued to the applicant by the learned ADJ. The proceedings transferred to the learned ADJ, because of pecuniary jurisdiction were sent back to this Court. The applicant choose not to appear before either District Judge or this Court despite the fact that the name of counsel for the applicant was being shown in the cause list while the counsel for the defendant No. 1 had been appearing in this case without any further notice. In the meantime, this suit was dismissed in default as well as for non-prosecution because of non-appearance of the plaintiff on 20th September, 2005. The plaintiff made an application for restoration of the suit immediately thereafter. Notice of this application was issued for 25th October, 2005. Defendant No. 1 appeared through counsel and did not oppose the restoration of the suit. Since other defendants were not appearing and only counsel for the defendant No.1 was appearing in the case, this Court restored the suit. However, in its order dated 31.7.2006 this Court noticed that the suit had been restored after dismissal without notice to the applicant and other defendant No. 3 and no notice was issued post restoration also to the two defendants, this Court ordered for issuance of fresh notice to defendants No. 2 and 3, i.e., present applicant and defendant No. 3. The service was effected on the present applicant through courier service. The courier receipt shows that the applicant was duly served with the notice. The plaintiff also filed an affidavit about the service. The defendant was also served through e-mail. Despite service through e-mail and despite service through courier, applicant chose not to appear in the Court and allowed the proceedings to be proceeded ex parte. The plea of the applicant that applicant was not properly served must fail in view of the courier receipt placed on record by the plaintiff and in view of the record of e-mail. The courier agency certified about the service of the applicant. I find no reason to disbelieve the certificate issued by the courier company about due service upon the applicant in US. The plea of applicant that the applicant learnt about the passing of the order from defendant No. 3, (defendant No. 2 in the amended memo of the suit) is not believable in view of the fact that the defendant No. 3 itself was not appearing in the Court despite service. Defendant No. 3 could not have informed the applicant about the proceedings and the only source of knowledge of the applicant seems to be the service through courier and probably the counsel for the applicant was watching the proceedings and deliberately not appearing. The entire application of the applicant is silent about the person who informed the applicant. I consider that there is no force in the application. The ground taken by the applicant that the applicant was not aware is baseless and false. The application is hereby dismissed. 1. This application has been filed by the plaintiff for release of the amount of US$76,928.45 deposited with the Registrar General at the instance of the Court during pendency of the case. Since this Court had passed a decree in favour of the plaintiff and against defendant No. 1, the plaintiff is entitled to this amount. Since the application of the defendant for setting aside the decree has been dismissed vide separate order, the Registrar General is directed to release this amount along with accrued interest thereon in favour of the applicant/plaintiff forthwith The application is disposed of.