Objection petition under Order 21 Rule 97 CPC in execution proceedings for non-service of summons
0 of 70 blanks filled
IN THE COURT OF Name of the presiding District Judge, DISTRICT JUDGE; COMMERCIAL COURT; Judicial district of the executing court DISTRICT; Court complex AT NEW DELHI.
OBJECTION NO. Objection number OF Year of the objection.
IN
EXECUTION NO. Execution number OF Year of the execution.
IN
CS COMM NO. Commercial suit number.
IN THE MATTER OF: -
Decree holder's name: DECREE HOLDER
V E R S U S
**Judgment debtor's name: JUDGMENT DEBTOR**
Objector's name: OBJECTOR
N.D.O.H.: Next date of hearing
OBJECTION PETITION UNDER ORDER 21 RULE 97 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 ON BEHALF OF THE OBJECTOR / JUDGMENT DEBTOR.
MOST RESPECTFULLY SHOWETH: -
1.That the present execution petition has been filed by the Decree Holder for execution of the judgment and decree dated Date of decree passed by Judge who passed the decree, Ld. District Judge (Commercial Court), District of the court that passed the decree, Court complex, Delhi, in CS (Comm.) Suit number, whereby the Ld. District Judge was pleased to pass the judgment and decree in favour of the Decree Holder / Plaintiff and against the Objector / Judgment Debtor / Defendant.
2.Upon perusal of the order sheets, it is observed that on Date of summons issuance, the Hon'ble Court was pleased to issue summons of the suit and notice of the injunction application to the Objector / Defendant through the e-mail address of the Defendant / Objector as given in the bills, as well as through registered post, and the matter was adjourned for Purpose of adjournment.
3.During the intervening period, in view of the outbreak of the Coronavirus, the Hon'ble High Court issued a notification dated Date of High Court notification, inter alia issuing certain directions to the District Courts at Delhi, and thereafter certain additional notifications were issued on Date of additional notification. In consequence thereof, this Hon'ble Court, on Date of adjournment order, adjourned the above-captioned matter to Next date fixed. A copy of the order dated Date of order appended is appended herewith.
4.On Date of High Court office order, the Hon'ble High Court of Delhi issued an Office Order, consistent with the lockdown orders passed by the concerned Government in the wake of the pandemic, whereby it was stipulated that the functioning of the learned Trial Courts stood suspended till Date till which courts suspended, and all matters listed till Date till which matters adjourned were to be adjourned en bloc.
5.More particularly, the Hon'ble High Court, vide its notification dated Date of High Court notification extending suspension, extended the suspension of the functioning of the Courts subordinate to the Hon'ble High Court of Delhi till Date till which suspension extended, and it was further notified that no adverse orders shall be passed by the subordinate courts without granting a hearing through video-conferencing or without obtaining written submissions from the concerned counsel. The said notification is appended herewith. It is pertinent to note that, in view of the said notifications, the Hon'ble Court was pleased to adjourn the proceedings to New date fixed.
6.Apropos the aforesaid, and as also recorded in the order dated Date of order referred, the Hon'ble High Court issued another notification dated Date of second suspension notification, whereby the functioning of the Courts subordinate to the Hon'ble High Court was suspended till Date till which courts suspended under second notification; accordingly, the hearing in the above-captioned case fixed for Date of hearing adjourned was adjourned to New hearing date.
7.Thereafter, on Date of virtual hearing, the matter was taken up through virtual hearing. On the said date, the Ld. Presiding Officer of the Hon'ble Court was attending a refresher programme for Commercial Courts; however, it was observed that the Ld. Counsel for the Plaintiff had sent through e-mail a copy of the e-mail sent to the Defendant, an affidavit of service by e-mail, and the registered post receipt of service of the complete paper book of the suit upon the Defendant. The matter was thereafter adjourned for Purpose of adjournment for proper orders.
8.That on Date of counsel's statement on service, the Counsel for the Plaintiff stated that the Objector / Defendant had been served through e-mail, that he had also filed an affidavit of service through e-mail, and that the plaint and all the documents had been sent through registered post; that on Date of service by email the Objector / Defendant was served through e-mail; and that, as reflected in the order sheet, the written statement had not been filed within the period of limitation, and hence the Decree Holder would file an application under Order 8 Rule 10 of the Code of Civil Procedure, 1908, for passing of the decree, along with proof of service of such application.
9.That the Objector craves the attention of the Hon'ble Court to the fact that the service in the aforementioned matter was incomplete, and hence the Objector / Defendant cannot be said to have been served in accordance with law. The envelope containing the complete suit papers along with the documents was returned unserved with the report "Report endorsed on returned envelope", and the Hon'ble Court was pleased to record the same in its order dated Date of order on returned envelope. On the same day, it was stated by the Decree Holder that the Decree Holder had filed the affidavit of proof of service through e-mail, and the matter was thereafter fixed for consideration of the service of the Defendant on Date fixed for consideration of service.
10.On Date of due service order, upon perusal of the affidavit of proof of service — which stated that summons had been received from the Court for service upon the Defendant by way of e-mail, and that a copy of the e-mail, allegedly showing that the summons had been sent to the Objector along with the copy of the suit and the application, had been annexed therewith — the Hon'ble Court deemed it to be due service upon the Objector.
11.The attention of the Hon'ble Court is invited to the very first order dated Date of first order and to the order noted above, which recorded that the e-mail had been served upon the Objector on Date of email service. With all fairness, the Objector deems it appropriate to draw the attention of the Hon'ble Court to the Rules bearing No. 70/Rules/DHC dated Date of Delhi High Court rules notification, whereby the Hon'ble High Court of Delhi, in exercise of its powers under Part X of the Code of Civil Procedure, 1908 (5 of 1908), Order V Rule 9 of the Code of Civil Procedure, 1908, and all other powers enabling it in this behalf, made the following Rules:
"Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules"
hereinafter referred to as the "Delhi High Court Rules".
12.The said Delhi High Court Rules, by virtue of Rule 3 of Chapter I, apply to the Courts subordinate to the Hon'ble High Court as well as to the Tribunals in Delhi. Reliance is now placed upon Rule 4, which deals with definitions. The clauses essential for the adjudication of the dispute in the present application are as follows:
4. Definitions:
(l)"Electronic Mail" is a store and forward method of composing, sending, storing and receiving messages in electronic form via a computer-based communication mechanism.
(m) "Electronic Mail Service" 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 authorised in this behalf by the High Court or the District Judge, as the case may be.
13.Coming to Chapter IV of the said Delhi High Court Rules, which specifically deals with 'Service by Electronic Mail Service', the attention of the Hon'ble Court is drawn to Rule 12 of Chapter IV, which is reproduced herein for the convenience of the Hon'ble Court.
12. Parties to provide electronic mail address if desirous of serving the other party by electronic mail
A party desirous of sending process to the other party by Electronic Mail Service shall provide the electronic mail address of the other party whom it wishes to serve by Electronic Mail Service. The party shall file an affidavit before the Court stating that the electronic mail address of the other party, as given by it, is correct to the best of its knowledge.
14.The aforesaid Rule makes it clear, to the extent specified, that any party to a suit, writ petition, application, appeal, revision or review pending before the Hon’ble High Court of Delhi or any subordinate court or tribunal, who is desirous of serving process upon any other party by way of Electronic Mail Service, shall provide the electronic mail address of the other party, and the party so desirous is required to file an affidavit before the Court stating that the electronic mail address is correct to the best of its knowledge.
15.With reference to the aforesaid provisions, the Objector states that no such affidavit was filed by the Decree Holder, inter alia, disclosing the correct e-mail address of the Objector/Defendant, and the matter proceeded without any such affidavit having been filed by the Decree Holder.
16.It is pertinent to note that the Objector/Defendant is a company registered under the provisions of the Companies Act, 1956, as amended from time to time. The Objector Company bears Corporate Identification Number Corporate identification number of objector, and the original and official e-mail address of the Company is Official email of objector company.
17.The attention of this Hon’ble Court is further drawn to Order V of the Code of Civil Procedure, 1908, which deals specifically with the issue and service of summons. It is settled law that the provisions relating to service of process in civil cases are laid down in Sections 27, 28, 29 and 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 Order number after Order XXVIII (Rule 3) and Order XLI (Rule 14) of the Code of Civil Procedure. Certain of these provisions were amended by the Amendment Acts of 1999 and 2002 in order to address the problem of delays in court processes.
18.The Objector fairly states that at the time of the alleged service effected by the Decree Holder before the Hon’ble Court, the pandemic was at its commencement; the office of the Objector was not operational, and the staff were not attending the office. As per the general practice of business, hard copies of documents are accepted, and several of the Company’s e-mail accounts remain unchecked, since the usual routine for service through e-mail upon the Objector Company is through the Chairperson. Further, as is evident from Order XXIX, in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case; and it is trite that, in respect of service upon a corporation, 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 its registered office, or, if there is no registered office, at the place where the corporation carries on business.
19.The Objector states that service through e-mail is always a supplemental mode of service and not a primary mode of service as prescribed under the statutes. It is alleged by the Decree Holder that service was effected upon the Objector by e-mail; upon coming to learn of the same, the Chairperson of the Objector Company made efforts to ascertain whether such service had been received, but the Objector is unable to affirm receipt of the said e-mail. The Objector derived knowledge of the present proceedings only upon receipt of the summons of the Execution Petition, and consequently thereafter, upon carrying out an inspection through the office of the undersigned.
20.Rule 9 of Order V deals with the delivery of summons by the Court; more particularly, sub-rule (3) of Rule 9 provides that 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, as provided by the rules made by the High Court. Rule 9A of Order V provides that service may also be effected by the Decree Holder by taking delivery of the summons from the Court and tendering the same to the defendant personally, or by any other mode referred to in sub-rule (3) of Rule 9.
21.In furtherance of the aforesaid submissions, the Objector submits before this Hon’ble Court that the object of service is that a party be informed of the institution of the suit in due time before the date fixed for hearing. It is pertinent to state that, upon inspection, the Objector came to learn that the address given by the Decree Holder was incomplete, and this was done with the intent of obtaining an ex-parte decree. The attention of this Hon’ble Court is also drawn to the remarks recorded on the reverse of the envelope, to the effect that no such company exists in that area, the fact being that the Decree Holder deliberately concealed the said address.
22.The conduct of the Decree Holder is further established from the fact that, when the Objector stated before this Hon’ble Court on Date of statement by objector, it was pointed out that the alleged e-mail which has been treated as due service in the present matter was taken by the Decree Holder from bills; however, the address stated in the said bill was not adopted by the Decree Holder in the memo of parties. Even otherwise, as per the memo of parties, the address of the Objector is shown as Address shown in memo of parties, whereas the correct address of the Objector as per the MCA website is Correct address of objector as per MCA, Uttar Pradesh, Additional address details as per MCA.
23.Reliance is now placed upon the provisions of Order V Rule 21 of the Code of Civil Procedure, 1908, which provides that whenever the defendant resides within the jurisdiction of another Court, the summons may be sent by the Court by which it is issued, either through one of its officers, as may be provided by the rules 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 the due procedure prescribed under the Code of Civil Procedure and the Delhi High Court Rules, amounts to non-service of summons. The cardinal rule of fair trial is that no person should be condemned unheard. It is submitted that the present is not a case of proper service.
25.It is, therefore, stated that the Decree Holder deliberately concealed the correct address of the Objector so that service could not be effected upon the Objector. In addition, it is established that the Decree Holder miserably failed to serve the Objector in accordance with the rules prescribed under the provisions of law. Even the learned Registrar of the Hon’ble Supreme Court, in an order dated Date of Supreme Court Registrar order in the matter titled Title of Supreme Court matter, noted and observed that service through e-mail is not 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 the satisfaction of the Court that the summons was not duly served upon the defendant. The words “was prevented by any sufficient cause from appearing” must be liberally construed so as to enable the Court to do complete justice between the parties, particularly where no negligence or inaction is imputable to the erring party. “Sufficient cause”, for the purposes of Order IX Rule 13 of the Code of Civil Procedure, has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. It is further stated that the Objector was never served, and it is only after receipt of the notice of the Execution Case that the Objector gained knowledge of the proceedings, leading to the institution of the present application as well as 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 a "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: Brij Indar Singh v. Lala Kanshi 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 has made averments concealing vital and material facts, with a clear intent to mislead this Hon'ble Court. The claim of the Decree Holder is highly baseless, fictitious and concocted and does not have an iota of merit. The claim of the Decree Holder is fabricated and is even supported by fabricated documents. It is submitted that the claim is founded purely upon the imagination of the Decree Holder, fuelled by malice, and hence deserves to be rejected in its entirety.
29.That it is further submitted that the decree is a nullity, as the same is not binding upon the Objector in terms of the judgment/decree passed by the Hon'ble Court.
30.That the decree passed is erroneous, illegal and contrary to the established principles of law, and the same is liable to be set aside in view of the doctrine of the Principles of Natural Justice and further in view of the fact that the Objector has not been afforded any opportunity to place his submissions before the Hon'ble Court.
31.That this Hon'ble Court exercised its discretion arbitrarily, and the same is based on a misunderstanding of the principles governing its exercise; as such, there has been a resultant failure of justice, contrary to law and the facts of the case.
32.That this Hon'ble Court would not have allowed the execution petition had the Decree Holder not misled this Hon'ble Court, inasmuch as the Decree Holder set out wholly false, baseless and incorrect facts, which is apparent from the suit as well as the execution petition.
33.That the decree dated Date of decree may not be permitted to be executed against the Objector so as to adversely affect his legal rights in any manner.
34.That the Objector submits that he has no other equal or efficacious remedy except to approach this Hon'ble Court by way of the present objections.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may be graciously pleased to:
i)Declare the whole process of execution as null and void, having been obtained by misrepresentation and by playing a fraud upon this Hon'ble Court, in the interest of justice;
ii)Withdraw any warrant of attachment, as the same cannot dispossess the Objector to satisfy a decree passed against the Judgment Debtor/Objector;
iii)Stay the operation of the decree dated Date of decree for stay passed by this Hon'ble Court till the instant objections are finally decided;
iv)Review/set aside the order dated Date of order to be set aside passed by this Hon'ble Court, which is against the rights of the Objector;
v)Pass any such further order(s) as may be deemed fit and proper in the facts and circumstances of the case.
Place of execution/signing of the objectionsOBJECTOR
THROUGH
DATED: Date of filing
Counsel's name
IN THE COURT OF Name of the Court
OBJECTION NO. Objection number (in affidavit)
IN
EXECUTION NO. Execution number (in affidavit)
IN
CS COMM NO. Commercial suit number (in affidavit)
IN THE MATTER OF:
Decree holder's name (in affidavit)DECREE HOLDER
VERSUS
**Judgment debtor's name (in affidavit)JUDGMENT DEBTOR**
Company name of deponent/ OBJECTOR
AFFIDAVIT
AFFIDAVIT OF MR. Deponent's name, AGED ABOUT Deponent's age YEARS, AUTHORISED REPRESENTATIVE OF Company name of deponent, HAVING ITS OPERATIONAL OFFICE AT Operational office address of company, DO HEREBY SOLEMNLY AFFIRM AND STATE AS UNDER:
1.That I am the Authorised Representative of the Objector Company in the above-noted matter, am well conversant with the facts of the case and am competent to swear this affidavit.
2.I say that the contents of the paragraphs of the accompanying objection petition are true and correct to my knowledge, and those paragraphs which are based on information received are true and correct upon such information, which I believe to be true.
3.I say that the contents of the accompanying objection petition be read as part and parcel of this affidavit, as the same are not repeated herein for the sake of brevity.
DEPONENT
VERIFICATION
It is verified on this Date of verification that the contents of the above affidavit are correct and true to my own knowledge, that nothing therein is false and that nothing material has been concealed therefrom.
DEPONENT