SUMIT ARORA Vs. SINGH MOTOR CENTRE

JUDGEMENT

(1.) This is an appeal filed under Order 43 Rule 1 of Code of Civil Procedure, 1908 (CPC) against the judgment of the Court below dated 29.7.2013 by which the application filed by the appellant/defendant under Order 9 Rule 13 CPC for setting aside the exparte judgment and decree dated 27.8.2009 was dismissed.

(2.) The facts of the case are that respondent/plaintiff filed the suit against the appellant/defendant for recovery of the principal amount of Rs.7,79,679/- alongwith interest on account of the appellant/defendant having got filled the petrol/diesel from the petrol pump of the respondent/plaintiff. At first the appellant/defendant paid as per the fuel purchased but thereafter he requested for credit facility which was granted by the respondent/plaintiff. The appellant/defendant however did not pay the amount for the fuel which was filled in his vehicles in the year 2005, and this resulted in the principal amount due as claimed by the respondent/plaintiff. The respondent/plaintiff ultimately sent a legal notice dated 5.10.2006 to the appellant/defendant, which too failed to yield any result, and therefore, the subject suit under Order 37 CPC was filed. The appellant/defendant was first served under Order 37 CPC by means of publication in the newspaper 'Statesman' inasmuch as in spite of repeated efforts, the appellant/defendant could not be served. It is worth mentioning, and as noted by the trial Court, the address of the appellant/defendant in this plaint is the same address as is given by the appellant/defendant in his application under Order 9 Rule 13 CPC. Even after the publication in 'Statesman', the appellant/defendant did not appear. The respondent/plaintiff subsequently converted the suit from Order 37 CPC to an ordinary suit for recovery of money and once again notices were repeatedly sent to the same address of the appellant/defendant, but once again the appellant/defendant could not be served and therefore for the second time the appellant/defendant was served by means of publication in the newspaper 'Statesman'. It bears note that the legal notice dated 5.10.2006 was sent by the respondent/plaintiff to the appellant/defendant at the same address and AD card shows the same as signed by the appellant/defendant. The newspaper publication was also sent under the postal certificate dated 28.4.2008 to the appellant/defendant at the same/subject address.

(3.) Learned counsel for the appellant/defendant argued that appellant/defendant should get an opportunity to appear in the suit and prove his case that in fact he had made payment of the amounts due to the respondent/plaintiff, but on a query of the Court as to how the amounts were paid, and whether the appellant/defendant has any receipt, it was informed to the Court that the huge amount running into lacs of rupees was allegedly paid by the appellant/defendant in cash without taking any receipt for payment and without even seeking return of the cheques which were given by the appellant/defendant to the respondent/plaintiff. Clearly therefore even on merits the appellant's case lacks bonafides. The object of judicial process is not to enable persons such as the appellant/plaintiff to keep on deliberately avoiding the court process, and when execution proceedings are filed thereafter file an application under Order 9 Rule 13 CPC for setting aside the money decree which is passed for goods received i.e fuel supplied in this case.