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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Rajeev Kumar Shrivastava - Petitioner
Versus
Publicity Hub & Anr. - Respondents
CM(M) 1559 of 2019 & CM APPL. 47134 of 2019
Decided On : 04-03-2020
Order XXXVII CPC - Recovery Suit - Chapter 21 of the Delhi High Court Rules - [SUMMARY OF ACTS AND SECTIONS REFERENCED: Order XXXVII CPC, Chapter 21 of the Delhi High Court Rules]
Fact of the Case:
The Plaintiff filed a suit under Order XXXVII CPC seeking recovery of a sum of Rs.4,98,000/- along with interest. Despite the Defendants being served with summons for judgment, they evaded appearance before the Court.
Finding of the Court:
The Court found that the Defendants were evading service and had not shown seriousness to defend the suit. The Court held that the suit is liable to be decreed in favor of the Plaintiff.
Issues: The issues raised included the erroneous approach of the Trial Court in directing fresh service, and the contention that summons for judgment should have been served upon the counsel for the Defendants once appearance was filed.
Ratio Decidendi: The Court emphasized the strict procedure mentioned in Order XXXVII CPC for recovery suits and highlighted that once counsels enter appearance, service to the parties is permitted through counsel. The Court also referred to relevant provisions of the Delhi High Court Rules and previous judgments to support its decision.
Final Decision: A decree was passed in favor of the Plaintiff against the Defendants for a sum of Rs.4,98,000/- along with simple interest @ 8% per annum from the date of filing of the suit till the date of payment.
JUDGMENT :
Prathiba M. Singh, J.
1. A suit under Order XXXVII CPC has been filed by the Petitioner herein/Plaintiff (hereinafter “Plaintiff”) against Respondents herein/Defendants, namely, Publicity Hub which is a sole proprietory concern of Smt. Abhilash Sarkar @ Smt. Tumpa Sarkar (hereinafter “Defendants”). The suit seeks recovery of a sum of Rs.4,98,000/- along with interest. The Trial Court issued summons in the suit in the prescribed format on 4th April, 2019 and the service of summons on the Defendants was effected on 2nd April, 2019. The Defendants filed their memo of appearance and in the said memo of appearance, the Defendants furnished the following addresses for service of summons for judgment:
2. That the defendant is being filing his appearance in the present case.
3. That the defendant furnishing his address for the service of summon for judgments and the same is following as under :-
Publicity Hub, Sole Proprietor Concern, E-473, Durga gali, East Babarpur, Shahdara, Delhi-110032 also At D-336, Ground Floor, Sector-10, Noida-201301
Smt. Tumpa Sarkar W/o Sh. Ashok Sarkar R/o E-473, Durga gali, East Babarpur, Shahdara, Delhi-110032 Also At D-336, Ground Floor, Sector-10 Noida-201301”
The said memo of appearance was filed by Sh. Vijay Kr. Singh, Advocate on behalf of the Defendants.
2. The Defendant No. 2 – Smt. Tumpa Sarkar also filed an affidavit in support of the memo of appearance under Order XXXVII Rule 3(1) CPC stating that she confirms the addresses given in the memo of appearance.
3. Thereafter, the Plaintiff filed summons for judgment. The said summons were sent to the Defendants both at the Delhi address and at the Noida address. The Plaintiff relies upon the certificates issued by the Department of Posts, Noida certifying that the summons for judgments were served on the Noida address. The tracking report of the Department of Posts showing the delivery to the Noida address is also placed on record. On 14th May, 2019, when summons for judgment were issued by the Trial Court, the ld. Counsel for the Defendants was also represented before the Court.
4. Despite the said service being affected and the ld. counsel for the Defendants being conscious of the fact that the summons for judgment has been issued, none appeared on 21st August, 2019. The Trial Court instead of proceeding to pass a decree, directed fresh service. The Plaintiff is aggrieved by the said order.
5. The submission of the ld. counsel for the Plaintiff is that the approach of the Trial Court is erroneous inasmuch as once service was effected by the Plaintiff, repeated service cannot be directed in terms of the judgment of this Court in Parminder Singh & Anr. v. Virender Pal Singh Jolly, 2004 IV AD (Delhi) 545 and M/s. Emmsons Internation Ltd. v. M/s Harshvardhan Chemicals & Minerals Ltd, 116 (2005) DLT 156. He submits that the counsel for the Defendants was present on the day when summons for judgment were issued. The ld. counsel was well aware that the same have been issued. Thereafter, the Defendants have also been served with the summons for judgment at the Noida address. The same were even despatched to the Delhi address by speed post. The clear conclusion is that the Defendants were served and that they are evading service. Hence, the direction to effect fresh service is completely erroneous and not sustainable.
6. The second issue raised was that the summons for judgment ought to have been directed to be served upon the ld. counsel for the Defendants and not upon the parties inasmuch as once the counsel has entered appearance, the purpose of issuing summons for judgment to the Defendants is served by serving the counsel for the parties itself. In support of this plea, M/s Emmsons Internation Ltd. (supra) is again relied upon by the ld. counsel. He also further relies upon Chapter 21 of the Delhi High Court Rules to submit that
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