BAJAJ AUTO FINANCE LTD Vs. MITSHI UDYOG

JUDGEMENT

(1.) This matter has been heard for over one hour. Judgment Debtors No.2 to 7 are stated to be partners of Judgment Debtor No.1. These Judgment Debtors are closely related to Shri Manmohan Seth, Judgment Debtor No.7, who had earlier filed an application under Order IX Rule 13 of the Code of Civil Procedure, along with an application under Section 5 of the Limitation Act, for setting aside the ex parte decree. This application has been rejected by my learned Brother Hon'ble Mr. Justice C.K.Mahajan by the Order dated 20.11.2003 with which I respectfully concur.

(2.) The Plaintiff has placed on record the Affidavit of compliance under Order XXXIX Rule 3 CPC which states that the Plaint and documents filed along with it had been dispatched to the Judgment Debtors by registered AD post. It is true that although ordered to do so, service of summons in the suit have not been attempted by registered AD post. No registered AD covers had been filed. However, applications were filed from time to time of which notice had issued by ordinary process. All these attempts have proved futile since although the address of the Defendants had been correctly given by the Plaintiff, they could not be served for one reason or the other. A lot of emphasis has been placed on the fact that registered AD covers were not filed but in view of the repeated attempts made to serve the Judgment Debtors, it would not be unreasonable to assume that they would have met with the same fate. Where procedural technicalities are resorted to, such persons should also be accorded similar treatment. On 15th May, 2000 a Receiver had been appointed who has visited the site in question and also affixed notices thereon, in proof of which photographs are available on the record. It is wholly incredible that even on this date none of the Defendants/Judgment Debtors had become aware of the pendency of the suit. It has not been contended before me, nor has it been pleaded in any application, that the papers sent by registered AD post by way of compliance under Order XXXIX Rule 3 had not reached any of the Judgment Debtors. Therefore the record affirmatively bears out that they had knowledge of the pendency of these legal proceedings and this is relevant so far as the present application under Order IX Rule 13 (without any reference to Section 5 of the Limitation Act) is concerned.

(3.) Notice on the application had been issued on 16.12.1998.