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Andhra Pradesh High Court
BHUSHAN STEEL AND STRIPS LTD - Appellant
Versus
JAI KISHAN BANSAL - RESPONDENT
Decided On: 03-01-06
The concept of 'special circumstances' under Order 37 Rule 4, CPC was interpreted to require unusual or extraordinary circumstances justifying the setting aside of a decree.
Headnote:
SUMMONS - Setting aside of decree - Order 37 Rule 4, CPC - 2003 (5) SCC 315
Fact of the Case:
The plaintiff filed a suit under Order 37 of the Code of Civil Procedure, 1908 based upon a dishonoured cheque. The defendant sought to set aside the decree claiming non-receipt of summons and an incorrect address being given on the plaint.
Finding of the Court:
The court found that the defendant's claims of non-receipt of summons and an incorrect address were without foundation, as evidenced by the defendant's own affidavits and documents filed by the defendant.
Issues: The main issue was whether the defendant had disclosed special circumstances justifying the setting aside of the decree under Order 37 Rule 4.
Ratio Decidendi: The court referred to the Supreme Court case of Rajni Kumar v. Suresh Kumar Malhotra and Another (2003) to explain the concept of 'special circumstances' under Order 37 Rule 4, emphasizing that non-service of summons can be a special circumstance.
Final Decision: The court dismissed the application for setting aside the decree, as no special circumstances were disclosed by the defendant.
( 1 ) THIS is an application filed on behalf of the defendant under Order 37 rule 4 seeking the setting aside of the decree passed on 29. 07. 2004 claiming that there are special circumstances in favour of the defendant / applicant for seeking the setting aside of the decree.
( 2 ) THE background of the present application is that on 08. 09. 2003, the plaintiff instituted the present suit under Order 37 of the Code of Civil procedure, 1908 based upon a dishonoured cheque. The summons were not being served on the defendant in the ordinary way and, therefore, on 26. 04. 2004, substituted service under Order 5 Rule 20 was directed to be effected by publication in the Statesman (New Delhi Edition) as also by affixation at the last known address of the defendant and also by affixation on the notice board of the court. On 14. 07. 2004, the Joint Registrar recorded that the defendant had been served with summons for appearance in the proforma prescribed under order 37 Rule 2 (2), CPC by way of the publication in the newspaper" the statesman (New Delhi Edition"dated 12. 05. 2004 ). The Joint Registrar also recorded that the defendant was served by way of affixation on the notice board and that despite service, the defendant had failed to put in appearance, although the period of 10 days from the date of service of summons for appearance had elapsed. On 29. 07. 2004, when the matter was placed before the court, the suit was decreed for a sum of Rs. 26,72,262/- with costs and with pendente lite and future interests at 9% per annum till realisation of the amount.
( 3 ) THIS application (IA No. 4108/2005) was filed by the defendant on 11. 05. 2005 when, according to the defendant, the factum of the decree having been passed was disclosed by the plaintiff to the defendant in the proceedings in respect of a complaint under Section 138 of the Negotiable Instruments Act, 1881 pending before the concerned Metropolitan Magistrate. The special circumstance pleaded and urged by the defendant is that the summons were issued and reportedly served on the defendant on an address at which the defendant did not reside. It is also pleaded and urged by the defendant that the defendant had no knowledge of the proceedings in the present suit.
( 4 ) ACCORDING to the learned counsel for the defendant, the address given in the plaint, i. e. , 460, Mundka Village, Main Rohtak Road, New Delhi was a previous address of the defendant and that the defendant had left that address some time in the year 2002. According to him, this suit was instituted in september, 2003 showing the previous address of the defendant and all summons and notices were sent to this address which was no longer the address of the defendant in the year 2002 onwards. Therefore, he contended that the defendant did not receive any summons and the occasion for service by way of publication under Order 5 Rule 20, CPC did not arise inasmuch as the correct address of the defendant was not shown. It is, therefore, submitted by him that the service by way of the publication would also be of no consequence. It is submitted that as soon as he came to know of the proceedings in the present suit on 07. 05. 2005, the defendant wasted no time and filed the present application on 11. 05. 2005 for setting aside the decree dated 29. 07. 2004
( 5 ) THE learned counsel for the plaintiff submitted that these pleas raised by the defendant are without any foundation or basis whatsoever and are contrary to what has been admitted by the defendant himself. He straightway drew my attention to the affidavit in support of the present application of the defendant (J. K. Bansal ). The affidavit which has been verified at New Delhi on 13. 05. 2005 begins with the following words:- "i J K BANSAL S/o Sh. P D BANSAL R/o 460, Village Mundka, New Delhi, do hereby solemnly affirm and declare as under:"
( 6 ) THEN the learned counsel for the plaintiff pointed out that similar affidavits disclosing the addr
