Reena Sadh vs Anjana
Enterprises Through Its ... on 23 January, 2007
Delhi High Court Reena Sadh vs Anjana
Enterprises Through Its ... on 23 January, 2007 Equivalent citations: 138
(2007) DLT 582, (2007) 146 PLR 60 Author: J Malik Bench: J Malik JUDGMENT
J.M.
Malik, J.
1
In these proceedings the appellant has picked
up a conflict with the ex-parte judgment, which according to her was passed
without service to her. Vide his order dated 23.12.2006, the learned Additional
District Judge dismissed the application moved under Order 9 Rule 13 C.P.C. In
support of her case, she has enumerated the following grounds. Firstly, the
decree holder had instituted a suit for recovery which was decreed with costs
by the Court of learned Additional District Judge against the judgment debtors
wherein the judgment debtors were directed to pay a sum of Rs. 14,50,000/-
together with interest @ 24% per annum, both pendente lite and future, till the
realization of the amount. It is averred that the suit of recovery was filed
against firm M/s Renuka Inc., Judgment Debtor No. 4. So far as the appellant is
concerned, she is neither a Director nor Partner nor she is holding any
interest in the firm. Despite this, she was imp leaded as a party in the suit.
It is explained that she was only an employee of the defendant's firm. Even if
it is assumed that any amount was due and payable to the decree
holder/plaintiff, then it was the liability of M/s Renuka Incorporation or its
Partners to pay the amount and not that of the appellant.
2
The key ground set up by the
appellant/defendant No. 3 was that she was not properly served in this case.
The gist of the ordersheets concerning the appellant is as follows. The
ordersheet dated 30.08.2001 goes to show that the appellant/defendant No. 3 was
served for the said date. On 21.02.2002, it was recorded that defendant No. 3
was absent despite service. Learned Counsel for the defendants No. 1, 2 and 4
Mr. K.K. Sharma submitted that he intended to seek instructions from defendant
No. 3 for representing her. The case was adjourned to 22.07.2002. On
22.07.2002, time was sought by the defendants to file written statement whereas
written statement of defendants No. 1, 2 and 4 was already filed. The case was
adjourned to 12.02.2003. The case was taken up on 13.02.2003. Learned Counsel
for the defendants No. 1, 2 and 4 again stated that he would seek instructions
from defendant No. 3 as well. It was ordered that written statement be filed by
defendant No. 3 within a period of two weeks. The case was adjourned to
08.08.2003. On 08.08.2003, Shri N.P. Kaushik, Learned Joint Registrar of this
Court passed the following order:
This
is a case where the value of the suit for the purpose of pecuniary jurisdiction
is less than Rs. 20 lacs. In view of the orders passed by the Hon'ble Chief
Justice the present matter is transferred to the court of Hon'ble District
Judge, Tis Hazari Courts, Delhi for assignment to a court of competent
jurisdiction. Parties and/or their counsel to appear before the Hon'ble
District Judge, Delhi on 25th September, 2003.
It
was pointed out that previously the case was instituted before this Court.
Subsequently, it was transferred to the District Court as the pecuniary
jurisdiction of the District Court was enhanced. The Court of learned
Additional District Judge received this case on 25.09.2003. None of the parties
except Ghanshyam Das, Partner of M/s Anjana Enterprises was present and the
Court ordered that Court notices be issued to defendants and their counsel. On
22.10.2003, defendants could not be served. Court notice was again ordered to
be issued for 01.12.2003. On 01.12.2003, defendants were not served. Again, it
was ordered that Court notice be issued to the learned Counsel for the
defendants for 07.01.2004. On 07.01.2004, the case was adjourned for fresh
Court notice to the defendants for 09.04.2004. On 12.02.2004 Mr. Avinash Lakhan
Pal, Proxy Counsel for Mr. K.K. Sharma, Advocate appeared and the case was
adjourned to 08.04.2004 for filing the reply. On 08.04.2004, defendants
appeared through Mr. Avinash Lakhan Pal, Proxy Counsel for Mr.K.K. Sharma. Last
opportunity was granted to file the reply subject to payment of costs in the
sum of Rs. 5,000/-. The case was adjourned to 26.04.2004. On 26.04.2004, the
Court was on leave and the case was adjourned to 03.05.2004. 03.05.2004 was
declared as a Holiday and the case was taken up on 04.05.2004. On 04.05.2004,
none
appeared on behalf of the defendants, therefore, the case was adjourned to
20.05.2004. On 20.05.2004, the Presiding Officer was on leave and the case was
fixed for 06.07.2004. On 06.07.2004, Proxy Counsel appeared for defendants. The
case was adjourned for reply to 17.08.2004. On 17.08.2004, none appeared on
behalf of the defendants. The case was proceeded against them ex-parte. Vide
order dated 17.08.2004, the case was fixed for ex-parte evidence on 29.09.2004.
The Court hearings were fixed for 29.11.2004, 14.12.2004, 01.02.2005,
04.03.2005, 04.04.2005, 09.05.2005, 03.06.2005, 11.07.2005, 17.08.2005,
20.09.2005, 01.10.2005, 06.10.2005 and 20.10.2005. The ex-parte decree was
passed on 27.10.2005. On none of the above mentioned hearings, anybody appeared
on behalf of the defendants.
1
Learned Counsel for the appellant pointed out
that the trial court proceeded with the suit on the assumption that the learned
Counsel, who was appearing for the other defendants is also representing the
appellant Reena Sadh. No vakalatnama on behalf of appellant/defendant was
filed. No memo of appearance was filed on her behalf.
2
Learned Counsel for the appellant pointed out
that interpretation given by the learned Additional District Judge regarding
the word "Parties" occurring in Rule 6 of Chapter 13, Delhi High
Court Rules is not correct. Learned Additional District Judge held:
The word
"parties" used in Rule 6 of Chapter 13 Delhi High Court Rules
substantially means and indicates the parties which are contesting the suit.
Only they are supposed to be informed and not those parties who have no interest
in the matter. The conduct of the JD No. 3 reflects that she had no interest in
the matter. According to her own version she had neither appeared herself nor
had authorized anyone to appear on her behalf. Thus, the position substantially
remains the same. The defendant is to be treated as ex-parte and in case the
erstwhile counsel of defendants No. 1, 2 and 4 were looking after her interest
as well then they were informed about the transfer of the case. The same
counsel Shri K.K. Sharma, Advocate through his colleagues put in appearance
even before this Court after the transfer of the case and never even clarified
that he does not represent JD No.
3.
Therefore, in these circumstances grounds on which setting of decree has been
sought do not support and substantiate the cause of the JD No. 3. The judgments
relied upon by the Counsel for JD No. 3 in Akttaryar Khan's case and Sushil
Kumar Sabharwal's case have evidently no bearing on the facts of this case.
Rule
6 Chapter 13 of Delhi High Court Rules runs as follows:
6.
Records to be sent immediately to the court to which case is transferred--When
is a case is transferred by administrative order from one Court to another, the
Presiding Officer to the Court from which it has been transferred, shall be responsible
for informing the parties regarding the transfer, and of the date on which they
should appear before the Court to which the case has been transferred. The
District Judge passing the order of transfer shall see that the records are
sent to the Court concerned and parties informed of the date fixed with the
least possible delay. When a case is transferred by judicial order the Court
passing the order should fix a date on which the parties should attend the
Court to which the case is transferred.
Learned
Counsel for the appellant argued that the notice of transfer should have been
sent to the appellant. It is submitted that the appellant was never contacted
by or any of the counsel appearing on behalf of the other defendants and the
counsel never sought instructions from the appellant. The findings given by the
learned Trial Court that the other defendants have to clarify that their
counsel was not representing the appellant, is not correct. It was prayed that
under these circumstances, the order passed by the learned Additional District
Judge should be set aside.
5.
All these arguments have left no impression upon the Court. This must be borne
in mind that this Court is dealing with an application under Order 9 Rule 13
C.P.C. This Court cannot decide the case on merits. However, plaint shows that
defendant No. 3 was an instrument in reaching the above said transactions.
Plaint reads that defendant No. 3 had interest in this case. It was alleged
that she had been used by defendants No. 1 and 2, who are the sister-in-law and
brother of defendant No. 3 in cheating the suppliers. She is also in conspiracy
with the defendants No. 1 and 2 in cheating the plaintiff/decree holder and
other suppliers. The present judgment debtor, the appellant is already on bail
in a criminal case. It is alleged that Reena Sadh used to sit in the aforesaid
office of the defendants No. 1 and 2. However, I refrain myself in discussing
the evidence in this regard. If the appellant is having any grouse, she should
file an appeal against the impugned judgment.
6.
Order 9 Rule 11 C.P.C. is of infinite importance. It puts the case of the
respondent and the decision taken by the first Appellate Court in an
impregnable position. The same is reproduced as hereunder:
R.11
Procedure in case of non-attendance of one or more of served defendants.- Where
there are more defendants than one, and one or more of them appear, and the
others do not appear, the suit shall proceed, and the Court shall at the time
of pronouncing judgment, make such order as it thinks fit with respect to the
defendants who do not appear.
This
is an indisputable fact that the appellant was served in this case. The record
reveals that notice was given to the defendant No. 3 Reena Sadh, wife of Mr.
Robin Sadh. The said notice was received by her husband under his signatures on
06.10.2001.
7.
Under these circumstances, it was not incumbent upon the Court to mention that
she was being proceeded against ex-parte or her defense was struck off. It is
also clear that Reena Sadh was adopting policy of hide and seek. She was taking
the Court for a ride. Her Advocate stated that she was getting instructions for
filing the written statement on atleast 2-3 occasions. On 08.08.2003, Joint
Registrar Shri N.P. Kaushik recorded the presence of the following persons:
Mr.
L.D. Adlakha and Mr. Ajay Amitabh Suman for the defendants." Mr. Ajay
Amitabh did not state that he was not appearing for defendant No. 3. It was the
duty of the Advocate to apprise the Court of the fact that he was not appearing
for defendant No. 3, particularly when he represented before the Court on three
occasions that he was seeking instructions for filing written statement on
behalf of the appellant.
2
The ordersheet dated 08.08.2003 clearly goes
to show that Rule 6 Chapter 13 of Delhi High Court Rules was complied with. The
fact that the learned District Judge took some extra precautions to serve the
defendants, does not go to belittle the value and significance of order passed
by Shri N.P. Kaushik, Joint Registrar.
3
The gamut of whole facts and circumstances
lean on side of decree holder. The Court below has meticulously checked the
record with precision and clarity. The appeal is without merits and is,
therefore, dismissed. Stay, if already granted stands vacated. No orders as to
costs. Trial Court record and copy of this judgment be sent to the Trial Court
forthwith. File be consigned to the Record Room.
