IMPORTANT POINT
The legal point established is that in cases of service of summons, the burden of proof lies with the party contesting the service, and unrebutted evidence can influence the court's decision.

JUDGMENT

PRATEEK JALAN, J.

1. By way of this appeal, under Section 96 of the Code of Civil Procedure, 1908 [hereinafter, "CPC"], the appellant-defendant challenges a judgment and decree dated 09.10.2019, passed by the learned Trial Court in CS No. 297/2019, by which a suit filed by the respondent-plaintiff under Order XXXVII of the CPC was decreed in the sum of Rs.16 lakhs, with pendente lite interest and future interest @7% per annum and costs. The defendant also assails an order dated 11.07.2023, by which his application under Order XXXVII Rule 4 of the CPC [wrongly filed under Order IX Rule 13 of CPC] was dismissed.[The parties will be referred to in this judgment by their status in the Trial Court.]

2. The cause of action asserted by the plaintiff in the plaint was that the defendant runs a financial committee, in the course of which he was required to return certain amounts to its members. He requested the plaintiff for financial assistance. Having had cordial relations for a substantial period of time, the plaintiff gave the defendant a loan of Rs.16 lakhs on 29.08.2014, against which the defendant issued a post-dated cheque of the same amount dated 25.02.2018. At the request of the defendant, the plaintiff advanced a further amount of Rs.1,50,000/-to him in the month of January, 2016, which was returned on 30.07.2017. The cheque for Rs.16 lakhs was presented for encashment, but returned by the defendant's bankers vide memo dated 28.02.2018 for want of funds. The amount having remained unpaid, the plaintiff instituted the suit under Order XXXVII of the CPC on 04.06.2019 for recovery of the aforesaid sum of Rs.16 lakhs, alongwith pendente lite and future interest at the rate of 18% per annum.

3. By an order of the learned Trial Court dated 06.06.2019, summons in the form prescribed under Order XXXVII of the CPC were issued to the defendant at the address mentioned in the memo of parties, namely House No. 83, Gali No. 3, Puth Kalan Road, Near Kaushik Telecom Pehladpur Bangar Delhi-110042 [hereinafter, "the Puth Kalan address"]. Summons were received by the defendant's father, Mr. Chander Singh, on 11.07.2019.

4. As the defendant did not enter appearance in the suit, the Trial Court decreed the suit in the sum of Rs.16 lakhs, with costs, pendente lite and future interest at the rate of 7% per annum, by the impugned judgment and decree dated 09.10.2019.

5. The defendant thereafter filed an application, purportedly under Order IX Rule 13 of the CPC. He contended that he acquired knowledge of filing of the suit only when he was informed by his friend, one Mr. Praveen Mann (who was informed by the defendant's father) of summons being issued to the defendant in execution proceedings filed by the plaintiff. It is contended that the Puth Kalan address was the address of the defendant's father, and that the defendant and his father and brother were not on visiting and talking terms since the year 2005. In support of his contention that he had been residing separately since then, the defendant placed before the Court a rent agreement in respect of a separate residential property, being Flat No. 565, Pocket 6, Sector B-4, Narela, Delhi-110040, which was effective from September, 2018. On merits, it was contended that the defendant had not taken the sum of Rs.16 lakhs by way of a loan from the plaintiff, but as part of the transactions of the financial committee operated by the defendant of which the plaintiff was also a member.

6. The application was contested by the plaintiff, both on the issue of maintainability under Order IX Rule 13 of the CPC and on merits. The plaintiff relied upon several documents to demonstrate that the defendant continued to reside at the address at which the summons were served upon his father.

7. By the impugned order dated 11.07.2023, the learned Trial Court accepted the plaintiff's contention on maintainability but treated the application as one filed under Order XXXVII Rule 4 of the CPC. On the question of se