B S CHILLAR Vs. USHA GUPTA & ANR

JUDGEMENT

(1.) Fao 95/2017 & CM APPL. 7332/2017, CM APPL. 7333/2017

(2.) It is the appellant's case that a suit for recovery of monies was instituted by respondent no.1 (plaintiff) against respondent no.2 (defendant no.1) and the appellant (defendant no.2). The appellant was never privy to any transaction of the suit property which is situated in Alwar, Rajasthan. Notice in the suit was not served upon him and his address remains the same in Rajasthan. He was a property dealer and had only introduced the parties to each other. The transaction between them is unknown to the appellant. Notice was purportedly served upon the appellant via publication in the English Daily - The Statesman, a newspaper which is neither circulated nor available in Alwar, Rajasthan, therefore, he never had notice of the suit proceedings. The learned counsel for the appellant submits that a claim for recovery of monies would not lie against the appellant because the documents relied upon by the plaintiff do not even mention his presence at the time of their execution, let alone any money being given to the appellant; that in the absence of any privity of contract between the plaintiff and the appellant or anything having been received by the appellant or his having extended any assurance to the plaintiff, no liability could ever be fastened upon the appellant. Accordingly, he submits that the impugned order dated 07.11.2016, passed in the execution proceedings, concluding inter alia that the appellant's non-appearance was intentional and malafide, is erroneous and without basis. He contends that no legal notice, preceding the institution of the suit, was addressed to the appellant; although one notice was allegedly addressed only to respondent no.2. Even the Police Compliant (Ex. Pw1/8) filed on 20.11.2008 only alludes to the appellant but does not specify any criminality on his hands and does not record any monies having been paid to the appellant or any surety having been extended by the appellant to the respondent. He states that the ex parte decree is primarily against respondent no.2, who is stated to have received monies from the plaintiff/respondent no.1; he contends that the appellant has been roped in into the litigation without any justification and a liability has been fastened upon him without any basis. There is no averment in the plaint that any monies were received by the appellant.

(3.) The facts of the case are that the respondent had filed a suit for recovery of Rs. 15 lacs with pendente lite interest at the rate of 24% per annum till realization of the decretal amount. The suit was filed against respondent no.2 and the appellant (arrayed as defendant nos. 1 and 2 respectively, in the suit). It was the plaintiff's case that on the basis of an agreement to sell, for the purchase of certain lands in Alwar, Rajasthan, against a total sale consideration of Rs. 60,60,600/-, an amount of Rs. 15 lakhs had been paid by the plaintiff to defendant no.1 i.e. Mr. Dharamveer, (respondent no.2 in this appeal). The address of the appellant was shown as Baba Bhagwan Das Properties, Office near Chaurahan, Alwar Road, Behror, Alwar (Rajasthan). Notice was sought to be served upon him but was not effected through ordinary process, hence notice was served via publication in The Statesman newspaper, which according to the learned counsel for the appellant, is neither circulated nor available in Rajasthan. Hence the said publication cannot constitute the substitute service.