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IN
THE COURT OF HONāBLE SH. GURDEEP SINGH, DISTRICT JUDGE; COMMERCIAL COURT; NORTH
WEST DISTRICT; ROHINI COURTS AT NEW DELHI.
OBJECTION NO. ________ OF 2023.
IN
EXECUTION NO. ____ OF 2022.
CS COMM NO. ___/2020.
IN THE MATTER OF: -
____________________________ : DECREE HOLDER
V E R S U S
_______________________________ : JUDGMENT DEBTOR
/
OBJECTOR
N.D.O.H.: ā¦ā¦2023
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 ______ passed by Sh. Vinod Kumar Ld. District
Judge; (Commercial Court) North-West Dist., Rohini Courts, Delhi in CS (Comm.)______
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 ___________, 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 ____________.
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 ________ and then on the __________, there were certain
additional notifications which were issued over as and which this Honāble Court
on the _____________, adjourned the said above-captioned Matter for the ___________.
Copy of the Order dated the ____________ is appended herewith.
4.
On
the ____________, 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 ____________, and the Matters which
are listed till ________- were to be adjourneden-bloc.
5.
More
Particularly, the Honāble High Court vide its Notification dated the _________,
extended the Suspension of Functions of Courts subordinate to the Honāble High
Court of Delhi till the _____________ 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 _________.
6.
Apropos
to afore-mentioned and also as stated in the Order of __________, the Honāble
High Court issued another notification dated the ___________, wherein the
Functioning of the Honāble Courts subordinate to the Honāble High Court was
suspended till the __________ and henceforth the Hearing in the above captioned
Case for the _____________ was adjourned to the ___________
7.
In
the end, on the __________, 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 _________.
8.
That
on the ____________, 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 ___________, 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 _____________
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 __________.
10.
The
Honāble Court on the ___________ 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 _________
and subsequently the afore-noted Order which stated that the E-Mail was served
upon the Objector on the ________. The Objector with all fairness before the
Honāble Court deems it appropriate to take the Honāble Court Attention to Rule
Bearing No. __/Rules/DHC dated the ________, 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 superessential 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 _______________,
and the Original as well as the Official Email Id of the Company is _______________.
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 the is 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 __________ 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 _____, __________, _____, ______,
_______, whereas the Correct Address of the Objector as per the MCA Website is
Khasra No. ___ and ____ ___________, ________, __________ 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 ___________ in the Matter titled as ____________
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 is 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 _________ 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 _________ passed by the Honāble Court till the instant objections
are finally decided;
iv) Review /
set aside the order dated ________ 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
___________________----------------------------
(Advocate)
------------------------------------
---------------------
IN THE COURT OF HONāBLE SH. GURDEEP
SINGH, DISTRICT JUDGE; COMMERCIAL COURT; NORTH WEST DISTRICT; ROHINI COURTS AT
NEW DELHI.
OBJECTION NO. ________ OF 2023.
IN
EXECUTION NO. ___ OF 2022.
CS COMM NO. ___/2020.
IN THE MATTER OF: -
_____________________________ :
DECREE HOLDER
V E R S U S
___________________________ : JUDGMENT DEBTOR
/
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
