ITLA INDIA Vs. MANSHAH TRAVELS PRIVATE LIMITED

JUDGEMENT

(1.) This is defendants' application under Order XXXVII Rule 4 read with Order 9 Rule 13 and Section 151 of the Code of Civil Procedure praying for setting aside the judgment and decree dated 19th April, 1991.

(2.) On 26th September, 1989, suit for recovery of Rs.4,39,000.00 was filed by the plaintiff against the defendants under Order XXXVII Civil Procedure Code . Summons were directed to be issued to the defendants in Form 4 of Schedule B of Order XXXVII C.P.C., returnable 20th November, 1989. Appearance on behalf of the defendants was put in on 24th October, 1989. Plaintiff applied for summons for judgment by moving application (I.A.8551/89). Summons for judgment were directed to be issued to the defendants through registered post for 1st February,1990. Summons issued under registered cover were received back undelivered with the remarks that the defendants were not found at the given address. Fresh summons for judgment were directed to be issued for 17th April, 1990. The case was taken up on 25th May, 1990 when it was directed to be posted for 23rd July, 1990, on which date it was noticed that summons for judgment issued to defendants 1 to 3 had been received back unserved with the report that defendants had refused to accept service. Since the report was lacking as to whether the summons for judgment were or were not left at the given address, fresh summons for judgment were directed to be issued by ordinary process, registered post and as well as dasti for 9th November, 1990. It was also directed that defendants, in case they are not available or refuse to accept the service, summons be left at the given address. On 21st March, 1991, it was noticed that summons for judgment were duly served when the same were left at the given address on 31st December, 1990. Defendants were thus deemed to have been duly served. Since no application for leave to defend was moved within time, the case was posted for 19th April, 1994 for passing appropriate orders, on which date decree was. passed in plaintiffs favour and against the defendants.

(3.) The defendants' case is that after having been server with summons they engaged Shri H.L.Tiku, and Shri M.N.Tikku, Advocates, who filed his memo of appearance on 24th October, 1989. Only copy of the plaint was served and they were not served with any copy of documents. Thus there was non-compliance of the provisions of Order XXXVII Civil Procedure Code . Defendants never received any sumons for judgment. Towards the end of 1990 and beginning of 1991, defendant No.2 wanted to visit Delhi to make enquiries about progress of the case but due to the disturbances in Kashmir Valley he could not visit Delhi. On 24th August, 1991, Shri Anil Bhan, Advocate, who introduced himself to be plaintiffs counsel met defendant No.2 and informed that decree has been passed against the defendants) upon which defendant No.2 came to Delhi, made enquiries and got the file inspected and ultimately moved an application on 3rd September, 1991 for setting aside the decree. It is alleged that after putting appearance within the stipulated time the defendants were awaiting for summons for judgement. Defendants acted diligently. Summons for judgment were not served upon the defendants. Summons were also not left the the given address. The reports on the summons were manipulated one. Even earlier reports of refusal were also manipulated one. Defendant No.3 was not in Srinagar on 26th March, 1990, therefore, his refusing to accept summons is not possible. In nutshell the defendants' case is that they were never served with summons for judgment and service on them is defective.