S.V. ENTERPRISES Vs. WELKIN AUTO PVT. LTD.

JUDGEMENT

(1.) This is an application, at the instance of the defendant in the suit, under Order IX Rule 13 of the Code of Civil Procedure (in short, "the Code") for recalling of an ex-parte decree dated May 06, 1998 passed by a learned Single Judge of this Court in the suit, C.S. No. 269 of 1993 (hereinafter referred to as "the suit"). The petitioner, the defendant/judgment debtor is a company incorporated under the Companies Act, 1956. The plaintiff/decree holder, the respondent herein is a registered partnership firm.

(2.) The respondent filed the suit, claiming a decree for Rs.38,39,353.00 together with interim interest and interest upon judgment against the petitioner. On May 06, 1998 the suit was decreed ex-parte. The principal ground urged by the petitioner for recalling of the said ex-parte decree is that the writ of summons in the suit was not served upon it and therefore it had no scope to contest the suit.

(3.) In the cause title of the plaint filed in the suit, the petitioner as the defendant was described as an existing company under the Companies Act, 1956 and having its registered Office at B-40, Phase-III, Industrial Area, S.A.S. Nagar, Mohali-160055, Punjab. The petitioner has asserted that although it had its registered office at the address mentioned in the cause title in the plaint and at present its registered office situated at C-40, Phase-III, Industrial Area, S.A.S. Nagar, Mohali-160055, Punjab but no writ of summons of the suit was served at its registered office in Mohali-l60055, Punjab. It is further alleged that though in the cause title of the plaint filed in the suit it mentioned that the defendant no.1, the petitioner was also carrying on business at "3/1 Magoe Lane, Calcutta-700001 C/o. Sethi Construction Company within the jurisdiction of this Court", but in fact the petitioner had no office within the jurisdiction of this Court. The description of the petitioner in the cause title of the plaint filed in the suit that it is carrying on business at 3/1, Mangoe Lane, Calcutta-700001 is fraudulent, misconceived and false. It was only in or about the year 1995 the petitioner opened an office in the State of West Bengal at 106, B.T. Road, 700035. It is at the said office at B.T. Road out side the jurisdiction of this court, the petitioner received a communication issued by the Advocate-on-Record of the respondent, enclosing therewith a copy of an order dated January 28, 1999 passed in an execution proceeding arising out of the decree dated May 06, 1998. The petitioner has alleged that from the said communication dated February 02, 1999 and the copy of the execution application enclosed therewith, for the first time it came to know about the filing of the suit as well as the passing of the said decree dated May 06, 1998.