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IN THE COURT OF HONāBLE XXXXX,
DISTRICT JUDGE; COMMERCIAL COURT; NORTH WEST DISTRICT; ROHINI COURTS AT NEW
DELHI.
OBJECTION NO. ________ OF 20**.
IN
EXECUTION NO. XX OF 20**.
CS COMM NO. XXX/20**.
IN THE MATTER OF: -
XXXXX :
DECREE HOLDER
V E R S U S
XXXXX
: JUDGMENT DEBTOR
(P) LTD. /
OBJECTOR
N.D.O.H.: ā¦ā¦20**
OBJECTION PETITION UNDER ORDER 21
RULE 97 R/W SECTION 151 OF C.P.C. ON BEHALF OF THE OBJECTOR / JUDGMENT DEBTOR.
MOST
RESPECTFULLY SHOWETH :-
1.
That the present execution petition has been filed by the
decree holder to execute the decree / judgment dated 01.12.2021 passed by Sh.
Vinod Kumar Ld. District Judge; (Commercial Court) North-West Dist., Rohini
Courts, Delhi in CS (Comm.)105/2020 and the Ld. District Judge was pleased to pass
the Decree / judgment in favour of the Decree Holder/Plaintiff and against the Objector
/ Judgment Debtor / Defendant.
2.
Post the Perusal of the Order Sheets, it is observed that on
the 13th of March 2020, Honāble Court pleased to Issue Summons of
the Suit and notice of Injunction Application to Objector / Defendant through
E-Mail Address of the Defendant/Objector as given in the Bills as well as
through Registered Post and the Matter was then Adjourned for 20th
of XXXX 20**.
3.
During the intervening Period, the Honāble High Court issued
a notification in view of the Outbreak of Coronavirus inter alia issuing
certain directions to the Delhi District Courts on the 13th of XXXX
20** and then on the 20th of XXXX 20**, there were certain
additional notifications which were issued over as and which this Honāble Court
on the 20th of XXXX 20**, adjourned the said above-captioned Matter for the
23rd of XXXX 20**. Copy of the Order dated the 20th of XXXX 20** is
appended herewith.
4.
On the 23rd of XXXX 20**, the Honāble High Court
of Delhi issued an Office Order in consistency with the Lockdown Order as
passed by the Respective Government in wake of the Pandemic, the Order clearly
stipulated that the Functioning of the Learned Trial Courts are suspended till
the 4th of XXXX 20**, and the Matters which are listed till 4th
of XXXX 20** were to be adjourneden-bloc.
5.
More Particularly, the Honāble High Court vide its
Notification dated the 16th of May 2020, extended the Suspension of
Functions of Courts subordinate to the Honāble High Court of Delhi till the 23rd
of May 2020 and it was also notified that no adverse orders shall be passed by
the Subordinate Court without giving hearing through video-conferencing or
without having written submissions from the Concerned Counsels. The Said
Notification is appended along-side the Present Application and it is pertinent
to note that the Honāble Court in lieu of the said Notifications pleased to
adjourn the Proceedings to 18th of July 2020.
6.
Apropos to afore-mentioned and also as stated in the Order of
18th of July 2020, the Honāble High Court issued another
notification dated the 13th of July 2020, wherein the Functioning of
the Honāble Courts subordinate to the Honāble High Court was suspended till the
31st of July 2020 and henceforth the Hearing in the above captioned
Case for the 18th of July 2020 was adjourned to the 17th
of October 2020.
7.
In the end, on the 17th of October 2020, the
Matter was taken up through the mode of Virtual Hearing and on the said Date
the Ld. Presiding Officer of the Honāble Court was attending a Refresher
Program for Commercial Court, however, it was observed that the Ld. Counsel for
the Plaintiff has sent through e-mail the Copy of the Mail sent to the
Defendant, Affidavit of Service by way of E-Mail and Registered Post Receipt of
the Service of Complete Paper Book of the Suit to the Defendant and the Matter
was then adjourned for Proper Orders for 19th of November 2020.
8.
That on the 19th of November 2020, the Counsel
for the Plaintiff stated that the Objector /Defendant has been served through E-Mail
and he has also filed an Affidavit of Service through E-Mail and also that the
Plaint and all the documents were sent through registered Post and on the 16th
of March 2020, the Objector/Defendants
were served through E-Mail and it was also the submission which is reflected in
the Order Sheet is that the Written Statement within the Limitation Period was
not filed and hence the Decree Holder shall file an Application under Order 8
Rule 10 of the Code of Civil Procedure 1908 for passing of decree along with
Proof of Service of Application.
9.
That the Objector craves an attention of the Honāble Court to
the fact the Service in the afore-mentioned Matter was incomplete and
henceforth, the Objector/Defendant cannot be said to be Served in accordance
with Law. The Envelope containing the whole of the Suit along-with the
Documents was returned back unserved with the report that āNo Such Office is
situated at the Given Addressā and the Honāble Court also pleased to State
the same in the Order dated the 16th of February 2021 and also on
the same day, it was stated by the Decree Holder that the Decree Holder had
filed through email the Affidavit of Proof of Service and the Matter was then
fixed for consideration of Service of Defendant on the 6th of March
2021.
10.
The Honāble Court on the 6th of March 2021 deemed
it to be a due service upon the Objector post the perusal of the Affidavit of
Proof of Service in which it was stated that Summons were received from the
Court for Service to the Defendant by way of E-Mail and along-side the
Affidavit, the Copy of E-Mail was also annexed which allegedly showed that the
Summons were sent to Objector along with the copy of the Suit and the
Application.
11.
Attention of the Honāble Court is taken back to the very
first order dated the 13th of March 2020 and subsequently the
afore-noted Order which stated that the E-Mail was served upon the Objector on
the 16th of March 2020. The Objector with all fairness before the
Honāble Court deems it appropriate to take the Honāble Court Attention to Rule
Bearing No. 70/Rules/DHC dated the 09th of February 2011, which the
Honāble High Court of Delhi in exercise of powers under Part X of the Code of
Civil Procedure,1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil
Procedure, 1908 and all other powers enabling it in this behalf, the High Court
of Delhi, hereby makes the following Rules by the name of
āDelhi Courts Service of Processes by
Courier, Fax and Electronic Mail Service (Civil Proceedings) Rulesā
Hereinafter Referred to as āDelhi
High Court Rulesā
12.
The Said Delhi High Court Rules by virtue of Rule 3 of
Chapter 1, places its Applicability upon the Subordinate Courts to the Honāble
High Court as well as to the Tribunal in Delhi. Reliance is now placed upon the
Rule 4 which talks about the Definitions. Certain Clauses which is queresential
for the Adjudication of the Dispute in Application is Concerned is as follows-
4. Definitions:
(l) āElectronic Mailā is a store and forward
method of composing, sending, storing and receiving messages in electronic form
via a computer based communication mechanism.
(m) āElectronic Mail Serviceā means the summons sent in
pre-designed template form by electronic mail, digitally signed by the
presiding officer of the Court or any other person authorized in this behalf by
the High Court or the District Judge, as the case may be.
13.
Now Coming to the Chapter 4 of these Delhi High Court Rules
which specifically deals with the Chapter of āService by Electric Mail Serviceā
and the Honāble Court Attention is drawn to Rule 12 of Chapter 4 which is
reproduced herein for the convenience of the Honāble Court
12. Parties to provide electronic mail address, if desire to
serve the other party by electronic mail:
A party desirous of sending the process to the other party by
Electronic Mail Service shall provide electronic mail address of the other
party or a party whom it would like to serve by Electronic Mail Service. Party
shall file an affidavit in Court stating that the electronic mail address of
the other party given by him is correct to the best of his knowledge.
14.
The Above Rule makes it clear to an extent that any Party to
the Suits, Writ Petition, Applications, Appeals, Revisions or Reviews pending
before the Honāble High Court of Delhi or any Subordinate Courts or Tribunal
who is desirous of serving the Process to any of the Other Party by way of
Electronic Mail Service shall provide Electronic Mail Address of the Other
Party and the Desirous Party have to file An Affidavit in the Court wherein the
Party shall state that the Electronic Mail Address is correct to the best of
his Knowledge.
15.
Apropos to afore-mentioned the Objector states that there
were no such Affidavit which was filed by Decree Holder, inter alia, disclosing
the Correct E-Mail address of the Objector /Defendant and the Matter was
proceeded without having an Affidavit being filed by the Decree Holder.
16.
It is to be noted that the Objector /Defendant is a
Registered Company under the Provisions of the Companies Act, 1956 and as
amended from time to time. That the Objector Company bears the Corporate
Identification Number as XXXXX, and the Original as well as the Official Email
Id of the Company is XXXXX.
17.
Attention of this Honāble Court is further drawn upon Order V
of the Code of Civil Procedure 1908, which deals specifically with Issue and
Service of Summons. It is a settled law that the provisions relating to process
service in civil cases are laid down in Section 27, 28, 29, 143 and Order V
(Rules 9 to 30), Order XXVII (Rule 4), Order XXIX (Rule 2), Order XLVIII (Rules
1, 2 and 3), Order III (Rules 3, 5 and 6), Order XXVIII (Rule 3), Order XXX
(Rule 3), and Order XLI (Rule 14) of the Code of Civil Procedure. Some of these
provisions have been amended by Amendment Acts in 1999 and 2002 to tackle the
problem of delays in court processes.
18.
The Objector fairly, states that at the time of alleged
service as rendered upon by the Decree Holder before the Honāble Court was the
beginning of the Pandemic and at that point of time, the Office was not
operational and even the staff were not coming to the Office and as the general
practice of Business, the Hard Copies of the Documents are accepted and there are
various e-mails of the Companies which also gets unchecked as the usual routine
for the service through an e-mail to the Objector Company is usually through
the Chairperson and also as evident from Order 29, it is clear that in suits by
or against a corporation, any pleading may be signed and verified on behalf of
the corporation by the security or by any director or other principal officer
of the corporation who is able to depose to the facts of the case and also the
service to a Corporation, it is a trite that the service of the summons may be
served on the secretary, or on any director, or other principal officer of the
corporation, or by leaving it or sending it by post addressed to the
corporation at the registered office, or if there is no registered office then
at the place where the corporation carries on business.
19.
That the Objector states that the service through an e-mail
is always a supplement service and not a mode of primary service as been
prescribed by and under the Statutes of Law and an alleged by the Decree Holder,
the service upon the Objector over an e-mail as alleged out by the Decree
Holder, then the Chairperson of the Objector Company tried to find out the
service but in the end the Objector is not able to affirm the receipt of the
E-mail as the Knowledge qua the Present Proceeding only derived out post the
receipt of the summons of the Execution Petition and consequently thereafter
carrying out an inspection by the Office of the Undersigned.
20.
Rule 9 of Order V talks about the Delivery of Summons by
Court and more particularly, Sub Clause 3 of Rule 9 states that the Service of
summons may be made by delivering or transmitting a copy thereof by Registered
Post Acknowledgment due or by any other means of transmission of documents
including Fax Message or Electronic Mail Service provided by the Rules made
by the High Court and Rule 9A of Order V provides service could also be done by
Decree Holder by taking delivery of summons from the court and tendering the
same to the defendant personally or by any other mode as referred to in sub
Rule 3 of Rule 9.
21.
The Objector in furtherance of the afore-mention Submissions
also submits before the Honāble Court that the Object of the Service is that
any party may be informed of the Institution of the Suit in due time before the
date fixed for the Hearing. Interestingly, it is stated that the Address of the
Objector, which on inspection, the Objector came to know that the Address which
was given up by the Decree Holder was incomplete and with an intent to take the
Ex-Parte Decree. Attention of theis Honāble Court is also drawn towards the
Remarks which stands settled down in back of the Envelope which states that no
such company exists in that area because of the Fact that the Decree Holder deliberately
did conceal the said address.
22.
That the conduct of Decree Holder is also established in a
way that the Objector stated before this Honāble Court on the 13th
of March 2020 the alleged e-mail which has been taken as a due service in the
Present Matter was taken up by the Decree Holder from the Bills, however the
Address as to what is stated In the Bill was not put by Decree Holder in the
Memo of Parties. Even otherwise, as per the Memo of Parties, the Address of Objector
is shown as Airty Road, Industrial Estate, Kundela, Shamli, Uttar
Pradesh-247776, whereas the Correct Address of the Objector as per the MCA
Website is Khasra No. XXXX and XXXX Shamli Muzaffarnagar Road, Near Tehsil,
Banat XXXXX Uttar Pradesh and ______________________________.
23.
Reliance is now placed upon the Provision of Order V Rule 21
of the Code of Civil Procedure, 1908 which states that whenever the Defendant
resides within the Jurisdiction of another Court then the summons may be sent
by the Court by which it is issued either by one of its officers as may be
provided by the rules as made by the High Court to any court having
jurisdiction in the place where the Defendant resides.
24.
It is stated that such service of summons without following
due procedure under the Code of Civil Procedure and Delhi High Court Rules
amounts to non-service of summons. The rule of fair trial is that nobody should
be condemned unheard. It is observed that the present was not a case of proper
service.
25.
Henceforth, it is stated that the Decree Holder had
deliberately concealed the correct address of the Objector so that the service
could not be affected to the Objector and in addition to the same, it is also
established that Decree Holder had miserably failed to serve the Objector as
per the Rules as established under the Provision of Law and even the Learned
Registrar of the Honāble Supreme Court in an order dated the 13th of
January 2023 in the Matter titled as Hardev Ram Dhaka and Ors Versus Union
of India noted and observed that Service through E-Mail is not a valid
service as per the rules.
26.
Under Order IX Rule 13 of the Code of Civil Procedure, 1908,
an ex-parte decree passed against an Objector can be set aside upon
satisfaction of the Court that either the summons was not duly served upon the
defendant. The Words was prevented by any sufficient cause from appearing must
be liberally construed to enable the court to do complete justice between the
parties particularly when there is no negligence or inaction is imputable to
the erring party. Sufficient Cause for the purpose of Order IX Rule 13 of Code
of Civil Procedure has to be construed as an elastic expression for which no
hard and fast guidelines can be prescribed. It is also stated that the Objector
was never served and it is only post the receipt of the notice of Execution
Case, the Objector gained knowledge leading to the putting up of the present
Application as well as leading to the Inspection of the Judicial File.
27.
In Arjun Singh v. Mohindra Kumar &Ors., AIR 1964 SC 993, this Court observed that every good cause is a
sufficient cause and must offer an explanation for non-appearance. The only
difference between a "good cause" and "sufficient cause" is
that the requirement of a good cause is complied with on a lesser degree of
proof than that of a "sufficient cause". (See also: BrijIndar Singh v. LalaKanshi Ram &Ors., AIR 1917 P.C. 156; Manindra
Land and Building Corporation Ltd. v. Bhutnath Banerjee &Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).
28.
That the Decree Holder made averments hiding vital and
material facts and clear intent to mislead this Honāble Court. The Decree
Holder is highly baseless, fictitious, concocted and do not have any iota of
merit. The claim of the Decree Holder is fabricated and is even supported with
fabricated documents. It is submitted that claim are based on general pure
imagination of the Decree Holder fuelled with malice and hence should be
rejected in its entirety.
29.
That it is further submitted that decree is nullity as same
is not binding upon the objector in terms of the decree / judgment passed by
the Honāble Court.
30.
That the decree passed is erroneous, illegal, contrary to
established principal of laws and same is liable to be set aside in view of the
doctrine of Principal of Natural Justice and further in view of the facts that
the Objector has not been given any opportunity to place their submissions
before the Honāble Court.
31.
That this Honāble Court exercised its discretion arbitrarily
and the same is based on misunderstanding of the principles that govern its
exercise and as such there has been a resultant failure of justice and is
contrary to law and the facts of the case.
32.
That this Honāble Court would have not allowed the execution
petition and decree holder has mislead this Honāble Court and taking the order in
as much as they made a totally false, baseless and incorrect facts and same is
apparent from the suit as well as execution petition.
33.
The decree dated 01.12.2021 may not be allowed to be executed
against the objector affecting adversely their legal rights in any manner.
34.
That objector submits that they have no
other equal or efficacious remedy other than to approach this Honāble Court by
way of the present appeal.
PRAYER :-
It is therefore, most respectfully
submitted that this Honāble Court may be graciously pleased to :-
i) Declare
the whole process of execution as null and void, having been obtained by
misrepresenting and playing a fraud on the Honāble Court in the interest of
justice.
ii) Withdraw
any attachment warrant as the same cannot be disposes the objector to satisfy
decree passed against the judgment debtor / objector.
iii) Stay
the decree dated 01.12.2021 passed by the Honāble Court till the instant
objections are finally decided;
iv) Review
/ set aside the order dated 01.12.2021 passed by this Honāble Court which is
against the right of the objector.
v) Pass
any further order as deem fit and proper in facts in circumstances of the case.
DELHI OBJECTOR
THROUGH
DATED
XXXXX
(LAW FIRM)
Through
XXXXX
(Advocate)
XXXXX
XXXXX
XXXXXXXXX
+91-XXXXX
IN THE COURT OF HONāBLE SH. XXXXX,
DISTRICT JUDGE; COMMERCIAL COURT; NORTH WEST DISTRICT; ROHINI COURTS AT NEW
DELHI.
OBJECTION NO. ________ OF 20**.
IN
EXECUTION NO. XXX OF 20**.
CS COMM NO. XXX/20**.
IN THE MATTER OF: -
XXXXX : DECREE HOLDER
V E R S U S
XXXXX
: JUDGMENT DEBTOR
(P)
LTD. /
OBJECTOR
AFFIDAVIT
1. That
I am the AR of the Objector Company in the above noted case and well conversant
with the facts of the case and is competent to swear this affidavit.
2. I
say that the contents of paragraphs of the accompanying objection petition are
true and correct to my knowledge and paragraphs of the plaint are true and
correct upon the information received and believed by me to be true.
3. I
say that the contents of the accompanying objection be read as part and parcel
of the affidavit as the same are not repeated for the sake of brevity.
DEPONENT
VERIFICATION
:-
It
is verified on this ____, day of August, 2023 that the contents of the above
affidavit are correct to my own knowledge. Nothing therein is false and nothing
material has been concealed therefrom.
DEPONENT
