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TMI Blog2023 (11) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... interest on the principal amount of Rs. 11,90,000/- at 18% per annum from the date of plaint till the date of realisation. 3. For the sake of convenience, the parties are referred to hereunder, as per their litigative status in the suit in CS.No.626 of 2006. 4.(i) According to the plaintiff as averred in the plaint filed by them, the defendant had placed indent for supply, erection and commission of 2 Nos. 8 Passengers capsule escalators for their project at DDJ Centre, Opposite to Vadaseri Bus Stand, Nagercoil, Kanyakumari District. Such an order was placed from the local office of the defendant at Chennai. The Plaintiff through their letter dated 16.08.2001 offered to supply and install the lift as per the specification of the defendant and the defendant also accepted the offer so made by the plaintiff through their letter dated 21.08.2001. (ii) The plaintiff further averred that the total contract price offered and accepted by the defendant was Rs. 17,00,000/-. As per the terms and conditions of the contract, the defendant has to pay 10% of total contract price, which is Rs. 1,70,000/- on placement of purchase order by the defendant, 40% of the total cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02, the defendant sent a reply containing false and untenable allegations against the plaintiff. While denying the allegations made in the letter dated 15.07.2002, the plaintiff sent letters dated 17.07.2002, 22.08.2002, 06.03.2003 and 09.04.2003 for payment of 70% of the total contract price and completion of civil construction work in the project site to enable the plaintiff to complete the erection and commissioning of elevators. The defendant, by reply dated 20.10.2003, admitted the commencement of erection work by the plaintiff in the site inter alia admitting their liability to make balance 70% of the total contract value as per the agreed terms of contract. Immediately, the plaintiff sent a reply dated 29.10.2003 calling upon the defendant to confirm whether the payment will be made as per the contract or not. As there was no reply, a final reminder dated 15.06.2005 was sent calling upon the defendant to make payment of Rs. 11,90,000/-, but the letter dated 15.06.2005 was returned by the postal authorities with an endorsement "door locked". (iv) According to the plaintiff, they have incurred considerable amount for transportation of machineries and for inspection of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further stated that the application to set aside the ex parte decree dated 24.04.2009 was filed within 30 days from the date of knowledge of the order of attachment and therefore, the same is in time. 10. Per contra, the application to set aside the ex parte decree was resisted by the plaintiff by filing a counter. According to them, in the suit, summons were sent to the defendant through the court bailiff, who has filed a report dated 03.02.2007 stating that the defendant had gone to Nagercoil and therefore, the notice was returned unserved. Subsequently, as directed, service of summons was effected by way of Court Notice Board and to the last known residence by affixing the notice at the address of the defendant. Even substituted service was effected through paper publication on 10.01.2008. Subsequently, by recording that the service has been completed on the defendant, the ex parte decree was passed on 24.04.2009. Thereafter, the plaintiff has filed E.P. No. 202 of 2018, in which, an order of attachment was passed and it was served on the defendant. During the execution proceedings, the plaintiff caused a search for the correct address of the defendant and they could fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigations. Owing to all that have been set out above, instant application is dismissed, but considering the facts of the case and constitution of defendant, this Court refrains itself from imposing costs. 12. As against the aforesaid order of dismissal passed by the learned Judge dated 05.02.2020 in Application No. 6100 of 2019 in Civil Suit No. 626 of 2006, the present appeal is filed by the applicant / defendant. 13.(i) Mr. Parthasarathy, learned Senior counsel appearing for the appellant/defendant submitted that the ex parte decree dated 24.04.2009 has been passed without even serving summons on the appellant/defendant. Even as early as in the year 2005, the appellant relocated their business premises, which could be inferred from the report of the bailiff, who attempted to serve summons in the suit. However, the learned Judge was carried away by the service of summons through last known address, summons affixed on the Court Notice Board and through substituted service in adherence to the procedures contemplated under the Code of Civil Procedure. The fact remains that the appellant had no knowledge about the filing of the suit and the ex parte decree passed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilled. Even the attachment order passed in the Execution Petition was not served on the appellant/defendant, but it was served only on the staff of A.A. Matriculation School. Therefore, it is contended that for non-service of summons in the suit, all further proceedings including the order of attachment, deserve to be set aside and the appellant must be given an opportunity to contest the suit, on merits. That apart, the learned Senior counsel relied on the decision of the Full Bench of this Court in Parasurama Odayav vs. Appadurai Chetty and others [AIR 1970 MADRAS 271 (FB)] to contend that the date of knowledge of institution of the suit through service of summons is significant for reckoning the delay in filing an application for setting aside the ex parte decree. In Para No. 16 of the judgment, it was held thus: " 16......Thus in Arts. 164 and 169 knowledge becomes a material factor only when the summons or notice was not duly served. But there are no such words in Art.166 even in a case where the notice wss not duly served. This is a clear indication that even in a case where the notice was not duly served and the judgment debtor came to know of the date of the sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot, is a statement which can be accepted only with a pinch of salt. Incidentally, we may state that though the date of appearance was 23-02-1993 the summons is said to have been tendered on 22-02-1993 i.e., just a day before the date of hearing." Therefore, the learned Senior counsel prayed for allowing this appeal by setting aside the order of dismissal passed by the learned Judge in the application filed to set aside the ex parte decree in the suit. 14.(i) Per contra, Mr. M.S. Krishnan, learned Senior counsel for the respondent/plaintiff submitted that even prior to the institution of the suit, there were exchange of notices and the defendant is fully aware of the failure on their part to adhere to the terms and conditions of the contract. After issuing several reminders, the plaintiff has filed the present suit for recovery of money. The defendant ought to have exercised prudence in settlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se has been concluded even in the year 2001 and after issuing various notices, the suit was filed in the year 2006. Now, after 19 years have passed, but till date, the plaintiff could not realise the hard labour and money spent by them in the project of the defendant. (iii) The learned Senior counsel appearing for the respondent/plaintiff placed reliance on the decision of the Honourable Supreme Court in the case of Jagdish Singh vs. Natthu Singh [(1992) 1 Supreme Court Cases 647] and submitted that the defendant was served with the notice in the suit and such service of notice must be presumed to have been served as contemplated under Section 27 of the General Clauses Act. (iv) Reference was also made to the decision of the Honourable Supreme Court in the case of Karnataka Public Service Commission vs. P.S. Ramakrishna [1996 (2) Supreme Court Cases 519]. In that case, the notice sent to the respondent therein on 28.09.1993 came back with an endorsement "not present" hence returned to sender. In such circumstances, it was held that it would be obvious that the respondent is avoiding service and notice must, therefore, be deemed to have been served on the respondent. (v) Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not receive the registered letter. However, the defendant- Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly." (vii) The learned Senior counsel for the respondent also placed reliance on the decision of the Honourable Supreme Court in the case of V. Raja Kumari vs. P. Subbarama Naidu and another [(2004) 8 Supreme Court Cases 774] and submitted that the burden is always on the defendant to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st office, the notice was not accepted by the Respondent and was returned unserved. In such circumstances, the presumption of law is that the notice has been served on the Respondent. 15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act." (ix) Reliance was also placed on the decision of the Honourable Supreme Court in the case of Parimal vs. Veena [AIR 2011 Supreme Court 1150] wherein it was held as follows: "8. It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under law, the suit was decreed as ex parte on 24.04.2009 and the appellant has preferred the application seeking to set aside the same, only in the year 2019, i.e., after a decade. 17.(i) Before appreciating the rival contentions, it may be relevant to refer to the various correspondences exchanged between the appellant and the respondent prior to the institution of the suit. By the communication dated 21.08.2001, the appellant, in his personal capacity, has placed order for two capsule Lifts with the respondent and it was duly signed by him. This letter dated 21.08.2001 was marked as Ex.P3 in the suit. Ex.P5 is the letter dated 14.12.2001 sent by the respondent, in which, it was stated as follows: "As you are aware the 100% materials for the above referred elevators are already despatched and received in your site at Nagercoil. Normally we don't supply the materials without collecting the material payment. However, as a special case on the basis of urgency to complete the installation in time, supply had been made. Since the installation crew can start the work only after the commercials are cleared, we request you to release the payment of Rs. 6,80,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable supervisors and utilize the manpower and complete the work before the due time. The due date is over more than one year and 10 months. Therefore, stop finding lame excuses putting your faults on somebody, you concentrate in the erection work and complete the entire work as early as possible and hand over both the lifts then your cheque will be honoured. In between please don't act smart and ask material payments, 40% payment, 10% payment, erection payment etc., since you have agreed for the 100% payment and collected the same. (vii) By a reply dated 15.06.2005 marked as Ex.P21, the respondent has informed that unless the balance payment is released, they are unable to complete the work or at least make the material payment due of Rs. 11,90,000/- for the supply of materials effected 3 years back. Ultimately, the respondent, through their lawyer, sent a notice on 08.09.2005 (Ex.P22) to the appellant calling upon them to pay Rs. 20,92,075/- with interest on the principal sum of Rs. 12,49,000/- failing which appropriate legal action will follow. The notice dated 08.09.2005 sent to the appellant, was returned unserved to the respondent. (viii) Thus, the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit summons served on the appellant, has been referred to. The learned Judge therefore refused to set aside the ex parte decree and dismissed the application on the ground that there was enormous delay in seeking to set aside the ex parte decree. 20. It was further pointed out by the learned Judge that the appellant has not filed an application seeking to condone the delay in filing the application to set aside the ex parte decree, but merely filed the application to set aside the ex parte decree dated 24.04.2009, after ten years. In this regard, it was contended on the side of the appellant that they were not aware of the institution of the suit and only when notice was received in an order of attachment, they came to know about the ex parte decree and immediately, they filed application seeking to set aside the ex parte decree and hence, there was no need to file an application to condone the delay in filing the application to set aside the ex parte decree. Taking note of the same, the learned Judge, while dismissing the application, ultimately observed that if the applications for setting aside ex parte decree filed in such a casual manner more than a decade later after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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