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2018 Supreme(Del) 73
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
Anand Prakash Gupta - Plaintiff
Versus
Gold Cause Constructions Pvt. Ltd. & Anr. - Defendants
CS(OS) 231 & 232 of 2012, IA Nos. 4959, 4960 of 2017, 248 & 247 of 2018
Decided On : 22-02-2018
Advocate Appeared:
For the Plaintiff : Mr. Debopriyo Pal
For the Defendants : Mr. Manav Gupta, Ms. Esha Dutta, Mr. Sahil Garg, Mr. Vivek Kohli, Ms. Yeshi Rinchhen
The grounds for setting aside an ex-parte decree must be genuine and not based on mala fide conduct. The alternative grounds for setting aside an ex-parte decree under Order IX Rule 13 of CPC were clarified.
Headnote:
Ex-parte Decree - Specific Performance - Specific Relief Act, 1963, Code of Civil Procedure, 1908 - Section 28 of Specific Relief Act, 1963, Order IX Rule 13 of CPC
Fact of the Case:
The defendants sought to set aside an ex-parte decree of specific performance, claiming non-deposit of balance sale consideration and improper service of summons.
Finding of the Court:
The court found that the defendants attempted to conceal facts, made false statements, and suppressed the involvement of their advocate. It held that there was no ground or sufficient cause for setting aside the ex-parte decree.
Issues: Service of summons, concealment of facts, false affidavits, and grounds for setting aside an ex-parte decree.
Ratio Decidendi: The court emphasized that the grounds for setting aside an ex-parte decree must be genuine and not based on mala fide conduct. It clarified the alternative grounds for setting aside an ex-parte decree under Order IX Rule 13 of CPC.
Final Decision: The applications to set aside the ex-parte decree were dismissed, and the court found no need to consider the applications for condonation of delay.
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. 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 or
