VIJAYA HOME LOANS LIMITED Vs. CROM TRADERS LIMITED

JUDGEMENT

(1.) The plaintiff had filed the instant suit being No.1854/96 under Order XXXVII of Code of Civil Procedure. The suit was for recovery of Rs .49 ,35 ,184/- together with pendentelite and future interest on the principal amount of Rs.32,56,630/- as well as cost. Since defendants could not be served by ordinary process, service by publication was ordered in an application moved by the plaintiff under Order V Rule 20 of Code of Civil Procedure. Defendants were served summons under Order XXXVII of Code of civil Procedure by publication in 'Statesmen' on 30/11/1996. As inspite of service defendants did not enter appearance within ten days of service of the summons on them, the plaintiff moved an application for passing decree for the suit amount which was allowed and Judgment and decree dated 21/08/1997 was passed decreeing the suit for Rs.49,35,184/- with interest pendentelite and future interest till realisation at the rate of 22 per cent per annum on Rs.32,56,630A- and the costs against the defendants.

(2.) This IA (2592/98) has been filed by the defendants under provisions of Order XXXVII Rule 4 read with Section 151 of Code of Civil Procedure for setting aside ex-parte Judgment and decree dated 2 1/08/1997 and grant of leave to enter appearance and defend the suit. Notice in this application was served upon the plaintiff who filed reply contesting the application. In the application it is stated that there was no proper service on the defendants and in fact the address of the defendants as mentioned in the plaint itself was incorrect. This wrong address i.e. C-7. Greater Kailash-I, New Delhi was furnished by the plaintiff inspite of knowledge to the effect that defendant No.1 had shifted its place of business from this address to M-49, Greater Kailash-1, New Delhi. Similarly address of defendant No.2 was wrongly mentioned as R-7, Greater Kailash, New Delhi inspite of having full knowledge of the fact that she had shifted to A-6, Poorvi Marg, Vasant Vihar, New Delhi much prior to the filing of the suit. It was also submitted that counsel for the plaintiff who filed the plaint and appeared at the relevant time also had personal knowledge about the correct address of the defendants where they had shifted as he had been acting as counsel for and on behalf of defendants as well as husband of defendant No.2 not only prior to the filing of the suit but even thereafter. Thus on the following premise the defendant is seeking setting aside of ex-parte judgment and decree:

(3.) The defendants have also dilated the aforesaid aspects in the application as well as oral submissions. It is submitted that communication dated 20/05/1996 was sent by the defendants to the plaintiff by registered post communicating the change of address. Copy of the said letter is annexed as Annexure-A along with the original postal receipt dated 21/05/1996 as Annexure-B. ' In order to show the knowledge of plaintiff's counsel about the current addresses of the defendants, certain documents are also filed. It is also averred that there is no specific denial of non-receipt of communication dated 20/05/1996 by the plaintiff in reply to the application. The defendants have also submitted that in view of these facts, it was not a case of effecting substituted service on the defendants under Order V Rule 20 of Code of Civil Procedure and orders to this effect were obtained by mis-representation. Further in any case, Rule 8 contained in Chapter-VII-B, Volume-IV of Delhi High Court Rules and Orders which provides for sending copy of the newspaper where the notice is published to the defendants under postal certificate was also not complied with. In the reply filed by the plaintiff to the aforesaid IA various allegations made in the IA are denied. The plaintiff has attempted to show that all possible efforts were made to serve the defendants through the ordinary process and when these efforts failed application under Order V Rule 20 of Code of Civil Procedure was filed for substituting service. In fact inspite of best efforts, the plaintiff could not obtain the present address of the defendant No.1 inasmuch as the plaintiff even verified from the office of the Registrar of Companies in order to ascertain the change of address but it transpired that the defendants had not effected any change of their address of registered office in the records of Registrar of Companies. Therefore, the defendants were rightly served by substituted service. In; so far as allegations against their counsel who had filed the case on behalf of the plaintiff, the same are denied.