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2021 Supreme(Del) 205
IN THE HIGH COURT OF DELHI
MANMOHAN, ASHA MENON, JJ.
Rohit Sharma – Appellant
Versus
A.M. Market Place Pvt. Ltd. & Others – Respondent
FAO(OS)(COMM). No. 37 of 2021 & CM.APPLs. Nos. 8493-8495 of 2021
Decided On : 03-03-2021
For the Appellant :Vishnu Shankar Jain, Advocate.
For the Respondents:Shwetasree Majumder, Prithvi Singh, Vasundhara Majithia, Advocates.
Mandatory nature of filing a written statement within 120 days of service of summons.
Headnote:
CPC - Recall of Ex Parte Order - Order IX Rule 7 - Order V Rules 15, 17, 19, 21 - Delhi High Court (Original Side) Rules, 2018 - SCG Contracts (India) Private Limited vs. K.S. Chamankar Infrastructure Private Limited & Ors., (2019) 12 SCC 210 - M/s. Print Pak Machinery Ltd. vs. M/s. Jay Kay Papers Conveters, AIR 1979 Del 217 (F.B.) - Iridium India Telecom Ltd. vs. Motorola Inc., (2005) 2 SCC 145 - The judgment discusses the recall of an ex parte order under Order IX Rule 7 of the CPC and the service of summons under Order V Rules 15, 17, 19, 21 and the Delhi High Court (Original Side) Rules, 2018. It also refers to the Supreme Court case SCG Contracts (India) Private Limited vs. K.S. Chamankar Infrastructure Private Limited & Ors., (2019) 12 SCC 210 and the Delhi High Court cases M/s. Print Pak Machinery Ltd. vs. M/s. Jay Kay Papers Conveters, AIR 1979 Del 217 (F.B.) and Iridium India Telecom Ltd. vs. Motorola Inc., (2005) 2 SCC 145, which establish the mandatory nature of filing a written statement within 120 days of service of summons.
Fact of the Case:
The appellant-defendant No.1 filed an application seeking recall of an ex parte order against him, claiming lack of knowledge about the case and non-receipt of summons. The court imposed a cost for setting aside the ex parte order and closed the defendant's right to file a written statement.
Finding of the Court:
The court found that the appellant-defendant No.1 failed to demonstrate how he came to know about the case and did not file a written statement within the stipulated period, leading to the loss of the opportunity to do so.
Issues: The issues revolved around the recall of the ex parte order, service of summons, and the appellant's failure to file a written statement within the specified time.
Ratio Decidendi: The court held that the appellant's lack of knowledge about the case and non-receipt of summons did not justify the recall of the ex parte order. It also emphasized the mandatory nature of filing a written statement within 120 days of service of summons.
Final Decision: The appeal and applications were dismissed as they were found to be bereft of merit.
JUDGMENT :
MANMOHAN, J.
1. The appeal has been heard by way of video conferencing.
2. Present appeal has been filed challenging the order dated 14th January, 2020 passed by the learned Single Judge disposing of IA No.7667/2019 in CS (COMM) No. 1055/2018 filed under Order IX Rule 7 of CPC by appellant-defendant No.1 for recall of the order whereby the Trial Court decided to proceed ex parte against the appellant-defendant No.1. The appeal is accompanied by an application seeking condonation of delay of 263 days in refiling the appeal.
3. The learned Single Judge by the impugned order imposed cost of Rs.30,000/- for setting aside the order dated 19th December, 2018 to the extent that the Court had proceeded ex parte against the appellant-defendant No.1. However, the learned Single Judge held that appellant-defendant No.1’s right to file written statement was closed. The relevant portion of the impugned order dated 14th January, 2020 is reproduced hereinbelow:-
“3. The present application seeking recall of order dated December 19, 2018 reads as under:
“4. That the applicant/Defendant No.1 could not appear on 19.12.2018 as it had no knowledge about the pendency of the instant suit. The non presence of the applicant was neither deliberate nor intentional. The Hon'ble Court has passed an order to proceed ex-parte against the applicant vide order dated 19.12.2018.
5. That the instant application is being filed for recalling/setting aside of order dated 19.12.2018 to proceed ex-parte against the applicant/Defendant No.1 on the ground that he had no knowledge about the filing and pendency of the case and the summons of the court were never delivered on the applicant or any member of his family and further that no summons have been issued by the Court in the State of Uttar Pradesh under Section 28 of CPC. It is further submitted that the order to presume service on the applicant is erroneous and subsequent order passed on the basis of such presumed service to precede ex-parte is also liable to be recalled in the interest of justice.
6. That it is respectfully submitted that no such summon was ever came at the residence of the applicant and his mother never came to know about any summons and she never refused to receive the postal envelop.
7. That it appear that Plaintiff with a view to get favourable order from the Court managed the postal department and got the noting of refusal even though no such postal article was ever given or tried to be given to the mother of the applicant.”
4. The averments made in the application are not at all inspiring. In fact, by way of this application, defendant no.1 is casting aspersion on the postal authority. The application does not disclose the fact as to how defendant no.1 came to know about the pendency of these proceedings. In fact, it is argued, that the postman had not come. No supporting affidavit of the plaintiff’s mother has been filed. Be that as it may, as this application is only for recall of order dated December 19, 2018, in the interest of justice and subject to the condition that the defendant no. 1 shall pay an amount of Rs.30,000/- to the plaintiff, the order dated December 19, 2018 is recalled. It may be clarified here that as the defendant no.1 has not filed the written statement within the stipulated period of 120 days, he has lost the opportunity to file the same. The application is allowed to the aforesaid extent. The cost shall be paid within a period of four weeks.
4. Learned counsel for the appellant-defendant No.1 states that no summons were served or tried to be served on the appellant-defendant No.1 and alleged refusal of the appellant-defendant No.1’s mother cannot be deemed to be sufficient service of summons on the appellant-defendant No.1 and therefore, the right of filing the written statement could not have been taken away. In support of his submission, he relies upon Order V Rules 15, 17, 19 and 21 of CPC.
5. Learned counsel for the appellant-defendant No.1 further submits that
