Rakesh Kumar vs Shree Ram Palace

S.L. Bhayana, J.—The present petition is filed under Article 227 of the Constitution of India against the order dated 5.5.2010 passed by the trial Court wherein the trial court has directed the Petitioner to deposit the entire decretal amount in the court within 10 days.

The facts necessary to be highlighted in the present petition as alleged by the Petitioner are that the Respondent had filed a civil suit bearing No. 190/2007 under Order 37 of the CPC Code, 1908, (hereinafter referred to as the "CPC") for a sum of Rs. 20,00,000/- against the Petitioner. The suit was filed on 9.8.2007 on the basis of cheque dated 11.9.2006, bearing No. 018066 for a sum of Rs. 21,00,000/- which was alleged to have been issued by the Petitioner to the Respondent in lieu of a friendly loan that the Respondent had allegedly given to the Petitioner and the Petitioner had allured the Respondent that he will return it to him presumably within two months. When the Respondent has asked the Petitioner to return the money, the Petitioner told him to encash the cheque on 15.10.2006. Accordingly, the Respondent presented the cheque for encashment on 16.10.2006 and it got dishonored on 17.10.2006 with the remarks "insufficient funds". The Respondent filed a suit against the Petitioner and in that suit the service on the Petitioner could not be effected as the name of the Petitioner was wrongly written in the plaint as Rajesh Kumar instead of Rakesh Kumar. The Respondent moved an application under Order 6 Rule 17 of the CPC to amend the plaint which was allowed by the Trial Court on 9.1.2008 and name of the Petitioner was corrected as Rakesh Kumar. Fresh summons were issued to the Petitioner for 20.2.2008. On the next date of hearing the summons sent by registered A.D. post were received back with the postal report "Refused". Therefore, the Trial Court held that the Petitioner was duly served and the Court proceeded against him ex-parte and also held that the summons sent in the ordinary manner were also duly served on the Petitioner on 9.2.2008. The trial Court has observed in its order dated 1.4.2008 that the Petitioner had failed to appear within ten days of the service, therefore the suit was decreed against the Petitioner in the sum of Rs. 20,00,000/-together with pendente lite interest at the rate of 9% per annum.

The Respondent filed an execution petition against the Petitioner. On 13.4.2009 the police official''s came to the residence of the Petitioner and threatened his wife that they would arrest her husband.

The Petitioner engaged a counsel who informed the Petitioner that an ex-parte decree had been passed against him. The Petitioner, thereafter, moved an application on 18.4.2009 under Order 37 Rule 4 of the CPC before the Trial Court for setting aside the ex-parte decree. The Trial Court disposed of the said application vide the impugned order dated5.5.2010.

I have heard the arguments advanced by learned Counsel for the parties and carefully perused the lower court record. The contention of the Petitioner is that he was never served with any summons by the Trial Court. The so called report of postal authorities "refusal" on the registered cover was procured and so was the report of the process server. The report of the process server was even otherwise defective and illegal as the signatures of receipt on the summons were not that of the Petitioner. Learned Counsel for the Petitioner has further submitted that earlier the summons were issued in the name of Rajesh Kumar and after amending the plaint a false and frivolous report of service upon the Petitioner through process server has been procured. However, the Petitioner had never refused to receive summons sent by the court. Further he submitted that the Petitioner came to know about this decree when police officials came to the residence of the Petitioner on 13.4.009 and threatened to arrest the Petitioner with regard to the execution proceedings and only than he came to know that ex parte decree has been passed against him.

On the other hand learned Counsel for the Respondent has asserted that vide order dated 1.4.2008 the Hon''ble court also observed that the service was effected on 9.2.2008 and the Petitioner herein did not enter his appearance within 10 days therefore, the Respondent herein was entitled for a decree against the Petitioner. Further counsel for the Respondent has submitted that it is an admitted fact that the alleged cheque was issued by the Petitioner himself to the Respondent as collateral security.

I have heard learned Counsel for the parties. I have also perused the registered envelope, wherein the postman has reported "Refused". But the Petitioner has asserted that this report has been procured by the Respondent from the postal authorities.

The Petitioner moved an application before the Trial Court for setting aside the ex-parte decree and granting him leave to contest the suit. The Trial Court has granted to the Petitioner conditional leave to contest the suit subject to his depositing the entire decretal amount.

Since, the Petitioner has taken a plea that he was not properly served with the summons so he could not appear and file an application for grant of leave to contest. He has further submitted that the cheque issued by him to the Respondent was only in lieu of collateral security. The Petitioner has submitted that he has raised triable issues and that he be granted unconditional leave to contest the suit.

Having heard learned Counsel for the parties and in the interest of justice, the prayer of the Petitioner is partly allowed. The Petitioner is granted leave to contest the suit subject to his depositing Rs. 10,00,000/- ( Rs. Ten Lakh only) with the trial Court in the shape of FDR within 60 days from today. With this modification in the impugned order the petition is partly allowed.

The petition stands disposed of.

The copy of this order be sent to the Trial Court for compliance.