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TMI Blog2022 (8) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... back the original writ of summons or any service report from the said Court. Whereas, the service made through Speed Post with A/D was returned and received by the office of the Sheriff on November 12, 2018 with the endorsement undelivered packet marked insufficient address . Whereas, an attempt for service of the writ of summons along with copy of plaint was made by the Sheriff's office through Learned District Judge, Raipur on February 12, 2019, and the same was returned with remarks as could not be served upon the petitioner/defendant Company due to non-existence at stated address . Therefore, as it is evident from the facts above, the petitioner/defendant company could not be served the amended plaint and the writ of summons of such plaint each time - From the Chapter IX Rule 3 of the Rules of the High Court at Calcutta (Original Side), 1914, it is patently clear that the instant suit could not have been transferred to the peremptory list of undefended suits by suppressing the material fact that the service of writ of summons and the plaint were pending and consequently incomplete. From the materials on record, it is apparent that the petitioner/defendant could not be serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant company entered into an agreement dated August 28, 2013 wherein both the parties were to jointly develop properties situated at Raipur. On August 28, 2013 the plaintiff company transferred an amount of Rs. 15,00,000/- (Rupees Fifteen Lakhs Only) through Real Time Gross Transfer (RTGS) from an account maintained at ICICI Bank, Chowringhee Branch, Kolkata-700016 to the defendant company's bank account. b) Subsequently, based on a meeting between both the parties it was agreed that the defendant would look into the construction work and the plaintiff would lend a sum of Rs. 1,35,00,000/- (Rupees One Crore and Thirty-Five Lakh Only) inclusive of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) already paid to the defendant on August 28, 2013. The loan amount was offered for a period of 2 (two) years and interest to be calculated at the rate of 18% per annum. c) After two years, the defendant failed to pay the due sum to the plaintiff company and also the defendant did not take any steps whatsoever with respect to the agreement dated August 28, 2013. Despite various attempts made by the plaintiff company through its advocate the defendant failed to repay the sum. At the time of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of such substitute service. However, the petitioner did not come across any such advertisement which the plaintiff was supposed to make in terms of the order dated 13th December, 2018. g) The petitioner argues that the respondent has committed deliberate fraud by not apprising the Court about the change of address of the petitioner back in March, 2019. Further, it is averred that the notice under Section 11 of the Arbitration and Conciliation Act, 1996 dated March 18, 2019 issued by the then advocate of the petitioner upon the respondent clearly mentioned its new address, the same has also been taken note of by the respondent and/or its advocate's letter dated 26th March, 2019 in paragraph 4 thereof. 4. Mr. Abhrajit Mitra, Senior Advocate, counsel appearing on behalf of the respondent/plaintiff has made the following arguments: a) The respondent/plaintiff states that the petitioner has blamed the advocate appearing on its behalf without any form of proof in support of the explanation. Thus, it is submitted that blaming the advocate is not a good ground and the same should be rejected by this court. b) The respondents/plaintiff avers that the writ of summons was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of non service of the first notice by the appellant as has happened in this case. 16. Moreover the first notice sent by the appellant on 12-4-1991 was effective and notice was deemed to have been served on the first respondent. Further, it is clear that the second notice has no relevance at all in this case at hand. The second notice could be construed as a reminder of the respondent's obligation to discharge his liability. As the complaint was filed within the stipulated time contemplated under clause (b) of Section 142 of the NI Act, therefore Section 138 read with Section 142 of the NI Act is attracted. In the view of the matter, we set aside the impugned judgment of the High Court. C) The respondent/plaintiff avers that substituted service under Order V Rule 20 of the CPC was done by newspaper publication of the amended plaint on December 23, 2018 pursuant to the order dated December 13, 2018. d) The respondent/plaintiff argues that in the instant suit, it had filed an application being G.A. No. 3204 of 2017 under Order XII Rule 6 for judgment upon admission and another application being G.A. No. 1908 of 2018 for amendment of the plaint, both these applications were ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that ex parte decree. 7. As is evident from a bare reading of the provision of law extracted above, O.IX, R.13 envisages two particular conditions, either of which if fulfilled, warrants an interference by the Court to set aside an ex parte decree; these conditions are: a) Either the defendant satisfies the Court that the summons was not duly served upon him, or b) The defendant was prevented by any sufficient cause from appearing when the suit was called for a hearing. 8. Moreover, in a decision of the Supreme Court in Bhivchandra Shankar More v. Balu Gangaram More reported in (2019) 6 SCC 387, while also relying on the dictum of Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787 as was done in Neerja Realtors Pvt. Ltd. v. Janglu (Dead) through Legal Representative (2018) 2 SCC 649, the Court had ruled on the 'substantive scope' of Order IX Rule 13 as follows: 11. In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of plaint despatched through by registered speed post with A/D on January 18, 2019. The same was returned and received by the office of Sheriff on February 06, 2019 with the endorsement undelivered packet marked as refused . 15. Whereas, an attempt for service of the writ of summons along with copy of plaint was made by the Sheriff's office through Learned District Judge, Raipur on February 12, 2019, and the same was returned with remarks as could not be served upon the petitioner/defendant Company due to non-existence at stated address . Therefore, as it is evident from the facts above, the petitioner/defendant company could not be served the amended plaint and the writ of summons of such plaint each time. 16. It is to be noted here that even when the service of writ of summons through Court as well as Registered Post was pending, the respondent/plaintiff company managed to get the suit transferred to the undefended list on February 04, 2019 itself. A suit may be transferred to as 'undefended suit' in terms of Chapter IX Rule 3 of the Rules of the High Court at Calcutta (Original Side), 1914 which is reproduced below as follows- 3. Where written statement is not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material from the consideration of the court, whatever view the court may have taken..... 19. In a well-known Calcutta High Court case in Chittaranjan Das vs. Durgapore Project Ltd. Ors. reported in (1994) 99 CWN 897 [Coram: Satya Brata Sinha and Basudeva Panigrahi, JJ.], the Court observed: 64. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation. It is now well known that a fraud vitiates all solemn acts. 20. It is the contention of the petitioner that the respondent was not entitled to the ex-parte decree dated June 12, 2019. I have no hesitation in saying that the doors of justice would be closed for a litigant whose case is based on false hood or suppression of material facts. Anyone who approach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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