HARISH MITTAL Vs. KISHAN GOPAL RATHI

JUDGEMENT

(1.) Present appeal has been filed under Order 43 Rule 1 of CPC, 1908 against the order dtd. 22/11/2024 passed by the learned District Judge (Comm.), Karkardooma Courts, Delhi in Misc. DJ No.583/2024 titled Harish Mittal vs. Kishan Gopal Rathi whereby the application of the appellant/defendant under Order IX Rule 13, CPC read with Sec. 151, CPC, 1908 seeking setting aside of the ex parte decree and judgement dtd. 17/5/2023 passed in CS(COMM) 535/2021 titled Shri Kishan Gopal Rathi vs. Shri Harish Mittal was dismissed. The present appeal also assails the ex parte decree and judgement dtd. 17/5/2023 whereby the suit was decreed in favour of the respondent/plaintiff for an amount of Rs.7,72,526.00 along with pendente lite and future interest @ 9% per annum till its realization; with costs and expenses.

(2.) In December, 2021, a suit bearing CS(COMM) 535/2021 for recovery of a sum of Rs.7,72,526.00 was filed by the respondent/plaintiff against the appellant/defendant before the learned District Judge, Karkardooma Courts, Delhi. Summons of the recovery suit were issued upon the appellant/defendant returnable on 1/2/2022. However, the appellant/defendant remained unserved and fresh summons were issued through ordinary as well as electronic mode subject to filing of affidavit of correctness as per Rule 12 of the Delhi Court Services of Process (Civil Proceeding) Rules, 2010 returnable on 14/3/2022. On 14/3/2022, the appellant/defendant was reported to be served through Whatsapp/E-mail. However, it was observed that as the Nazarat branch neither informed the appellant/defendant over phone, nor it was mentioned whether the said e-mail was duly received or bounced back, nor the screenshots of the e-mail and Whatsapp have been annexed, hence, fresh summons were issued.

(3.) On 11/5/2022, the summons again remained unserved and the respondent/plaintiff sought liberty to move an application under Order V Rules 20, CPC for substituted service. Thereafter, on 30/5/2022, the said application moved by the respondent/plaintiff for substituted service of the appellant/defendant was allowed by the learned Trial Court observing that the defendant cannot be served by ordinary process and it is avoiding the service. Accordingly, the respondent/plaintiff served the appellant/defendant by substituted mode, by way of publication in the national newspaper "œThe Statesman " dtd. 12/6/2022. On 1/12/2022, the learned Trial Court observed that the defendant was duly served with the summons of suit by substituted means yet not appeared and thus, was proceeded ex parte.