$~31 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09.09.2024 + CS(COMM) 19/2017 M/S GATI INFRASTRUCTURE PVT LIMITED .....Plaintiff Through: Mr.Basa Mithun Shashank, Mr.Subrahmanya Bhanu and Mr.M.V. Mukunda, Advs.

versus ASHWANI SAINI & OTHERS .....Defendants Through: Mr.Gagan Gupta, Sr. Adv. with Mr.Tanvir Nayar, Mr.Yagyesh Kumar & Mr.Saurabh Gupta, Advs. for D-1 & D-

2/Applicants.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (ORAL)

I.A. 16321/2019 & 16326/2019

1. These applications have been filed by defendant nos.1 and 2 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’), praying for the setting aside of the ex parte Judgment and Decree dated 13.12.2017, passed in the present Suit. It is contended that the summons issued by this Court vide its Order dated 09.01.2017, were never received by the defendant nos.1 and 2.

2. In support of the said submission, the learned senior counsel for the defendant nos.1 and 2 contends that, to the knowledge of the Signature Not Verified Digitally Signed CS(COMM) 19/2017 Page 1 of 14 plaintiff, defendant no.1 had shifted his residence to 28, Civil Lines, Baldev Singh Marg, Roorkee, Uttarakhand-247667, as is evident from the letter dated 05.04.2017 addressed by the plaintiff to the defendant no.2 through defendant no.1. In spite of such knowledge, the plaintiff attempted to serve defendant nos.1 and 2 at the old address, that is, S-

14, Avas Vikas, Roorkee, Uttrakhand-247667.

3. He submits that, even otherwise, the report of the Process Server, as far as defendant nos.1 and 2 are concerned, are contradictory. For defendant no.1, the Process Server states that he went to the address given in the notice, which was the address given in the memo of parties, and though he did not find defendant no.1 there, he met defendant no.1’s wife, that is, Smt. Sujatha, who informed him that her husband had gone out for some work and would be available only after one or two months. He further records in his report that Mrs.Sujatha refused to receive the notice after speaking to defendant no.1 on the phone. The Process Server then states that he affixed the notice on the wall of the house. In contradiction to this report, for defendant no.2, notice of which was again addressed through defendant no.1 and at the same address, the same Process Server states that when he went to the same address, he was informed that the company has since been closed. He was also told that defendant no.1 does not stay at the given premises. He states that he was then told that defendant no.1 stays in a house in front of the house of an Ex MP, Mr. Harpal Singh Sathi of Ram Nagar, where he went and met Smt.Sujatha, wife of defendant no.1. The learned counsel for the applicants submits that, therefore, the two reports of the Process Signature Not Verified Digitally Signed CS(COMM) 19/2017 Page 2 of 14 Server are contradicting each other, whereas in one it states that Mrs.Sujatha was found at the address given in the memo of parties, while in the other it is mentioned that she was not found at that address and in fact the Process Server went to another address where he found her; both cannot co-exist.

4. The learned senior counsel for the applicants further submits that the Process Server, in both summons, states that he had to affix the summons as Mrs.Sujatha refused to accept them. As a witness to the affixation, only two signatures appear on both the reports, but the names and addresses of these witnesses are not mentioned. Placing reliance on Order V Rule 17 of the CPC and Chapter XXI Rule 9 of the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the ‘Delhi High Court Rules’), he submits that it is essential that where the notice is served by way of affixation, the name and addresses of the witnesses shall be mentioned in the report by the Process Server. This is to ensure that there is authenticity of process of affixation.

5. He submits that,