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2018 Supreme(Del) 2569
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
SANJEEV BHASIN - Appellant
Versus
PREETI ARYA - Respondent
RFA No.607 of 2018
Decided on : 01-08-2018
Advocate Appeared:
For the Appellant :Mr. Krishna Dev Pandey, Advocate.
The importance of presenting evidence and a written statement in court proceedings to support the case.
Headnote:
CIVIL PROCEDURE CODE - Regular First Appeal - Section 96 of CPC - [Section 96 of CPC] - The court discussed the exparte judgment and decree against the appellant/defendant, the application filed under Order IX Rule 7 CPC, and the dismissal of the application. The court also analyzed the facts of the case, including the agreement between the parties, the dishonoured cheque, and the legal notice. The court found no merit in the appeal and dismissed it.
Fact of the Case:
The respondent/plaintiff filed a suit for recovery of money against the appellant/defendant, who was proceeded exparte. The appellant/defendant challenged the exparte proceedings and the judgment of the Trial Court.
Finding of the Court:
The court found no grounds to set aside the order dismissing the application under Order IX Rule 7 CPC. On merits, the appellant/defendant had no case as there was no written statement or evidence presented. The respondent/plaintiff proved her case, and the court found no merit in the appeal.
Issues: Exparte proceedings, challenge to the judgment and decree, validity of the application under Order IX Rule 7 CPC, merit of the appeal.
Ratio Decidendi: The court upheld the dismissal of the application under Order IX Rule 7 CPC and found no merit in the appeal due to lack of evidence and written statement from the appellant/defendant.
Final Decision: The appeal was dismissed.
VALMIKI J. MEHTA, J.
C.M. No30349/2018 (for condonation of delay)
1. For the reasons stated in the application, delay of 59 days in re-filing the appeal is condoned.
C.M. stands disposed of.
RFA No. 607/2018 and C.M. No.30348/2018(stay)
2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 9.1.2018 by which trial court has decreed the suit filed by the respondent/plaintiff and has awarded to the respondent/plaintiff a money decree for a sum of Rs.7.25 lacs alongwith interest @ 9% per annum.
3. At the outset, it is to be noted that the impugned judgment and decree is an exparte judgment and decree against the appellant/defendant. The appellant/defendant was proceeded exparte on 2.11.2016. An application filed under Order IX Rule 7 CPC to join the proceedings at the stage of final arguments was dismissed on 18.12.2017. This order is also sought to be challenged in the present appeal.
4. The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of money by pleading that the respondent/plaintiff was appointed as a C & F Agent by the appellant/defendant vide Agreement dated 12.9.2013. Respondent/plaintiff was the C & F Agent with respect to books, tablets, CDs etc which were published by the appellant/defendant. Under the Agreement entered into between the parties dated 12.9.2013, a sum of Rs.5 lacs was given by the respondent/plaintiff to the appellant/defendant through banking transaction of NEFT payment. On account of disputes between the parties, the agreement was terminated because the respondent/plaintiff pleaded that the appellant/defendant did not pay the requisite commission on sales, the respondent/plaintiff vide her letter dated 9.9.2014 requested the appellant/defendant to refund the security deposit amount of Rs.5 lacs alongwith balance commission payable of Rs.2.25 lacs. The appellant/defendant issued a cheque no.417194 dated 25.11.2014 for Rs.5 lacs but the subject cheque was dishonoured on presentation. Respondent/plaintiff then served the legal notice dated 18.12.2014 upon the appellant/defendant and thereafter filed the subject suit.
5. As already stated above, the appellant/defendant was proceeded exparte and the application to set aside exparte proceedings was dismissed by the order dated 18.12.2017 and which order has also been challenged in this appeal in view of Section 105(1) CPC. This order dated 18.12.2017 reads as under:-
“Present:
Sh. Iqbal Singh, advocate for plaintiff Sh. Narender Singh, proxy counsel for defendant
Again adjournment prayed on behalf of defendant submitting that main counsel is not appearing due to illness. No written application or document showing the illness of counsel is filed on behalf of defendant. Counsel for plaintiff opposed the adjournment.
Matter is fixed for arguments on the application of defendant u/o 9 Rule 7 CPC. On the last date of hearing, adjournment was granted to the defendant as it was submitted that counsel is unable to attend the court due to kidney stone problem and the same was not opposed. By way of the present application, it is submitted on behalf of defendant that he has not been served and is not aware about the suit and so unable to file the written statement. Whereas perusal of the file reveals that the defendant was served with summons on 20-09-2016 and on the date fixed i.e. 02-11-2016 none appeared on behalf of defendant and as period of 30 days prescribed by CPC for filing the WS had expired, the Predecessor of this Court proceeded the defendant ex-parte. The suit is filed against the defendant Sanjeev Bhasin showing him proprietor of M/s SBS Publication and the summons sent to him were received personally by him and bears his signatures with date 20-09-2016.
Considering the facts, the application is nothing but a dilatory tactics. Accordingly, the same is dismissed.
Put up for final arguments on 04-01
