INDOFIL INDUSTRIES LTD. Vs. M/S. KAYCEE CHEMICALS

JUDGEMENT

(1.) This application has been taken out by one Mr. Giridhari Lal Singvi praying, inter alia, for a declaration that the decree dated 9th June, 2015 is inexecutable and void. This application has been filed after the applicant has filed an affidavit of assets in terms of the order dated 4th May, 2017. Mr.Singvi was also present for examination on 6th July, 2018. Mr.Singvi, after accepting an order dated 4th May, 2017, has ingenuously crafted this petition to defeat the claim of the decree-holder as by this time it has become eminently clear to the applicant that dye is cast and bolt impending. The frivolity of the application would be evident from the facts mentioned hereinafter.

(2.) The plaintiff filed the suit against the defendant for recovery of price of goods sold and delivered to the defendant. The plaintiff contended that between December 13, 2009 and July 13, 2010, the defendant made part payments to the plaintiffs by account payee cheques aggregating a sum of Rs. 2,94,300/- and thereafter, few payments leaving a sum of Rs. 9,81,692.05 as the principal sum due as on 30th September, 2012. The suit was instituted on 4th December, 2012. During scrutiny of the plaint certain defects were noticed and by the time the defects were removed the time for issuance of writ of summons had expired. In fact, the time for issuance of writ of summons expired on 14th December, 2012. The plaintiff accordingly filed an application being GA No. 85 of 2013 praying, inter alia, for extension of time to lodge the writ of summons with the office of the Sheriff. The said prayer was allowed on 11th January, 2013. Thereafter, the writ of summons appears to have been sent to Mr. Nitin Singvi on 18th January, 2013 as sole proprietor of the judgment-debtor as the plaintiff seems to be unaware of the fact that in the meantime the character of the judgment-debtor has been changed from proprietorship to partnership. However, curiously the writ of summons was received on behalf of the judgment-debtor by one Mr. Subhas Mukherjee. The covering letter by which the writ of summons was sent was addressed to Nitin Singvi as proprietor of the defendant and/or person in management of the defendant concern i.e. M/s. Kaycee Chemicals. While the writ of summons sent by speed post was returned undelivered with the postal remark 'addressee left', the report filed by the office of the Sheriff shows that Mr. Subhas Mukherjee has received a copy of the notice on behalf of the defendant on 4th February, 2013 at 3:45 PM. Mr. Mukherjee after putting his signature has put a rubber stamp which reads:

(3.) However, the word 'proprietor' appears to have been scored through by Mr. Mukherjee. The entire thing was witnessed by one Mantu Charan Manna.