IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

Original Side

Present:

The Hon’ble Justice Shekhar B. Saraf

G.A. No. 3 of 2021

In

C.S. No. 205 of 2017

AARYAN PROJECTS PRIVATE LIMITED

Versus

KLOWIN INFRASTRUCTURE PRIVATE LIMITED.

For the Plaintiff/Respondent : Mr. Abhrajit Mitra, Sr. Advocate,

Mr. Jishnu Chowdhury, Advocate,
Mr. Sankarsan Sarkar, Advocate,
Mr. Mehboob Rahman, Advocate,
Ms. Tahmina Aslam, Advocate,

For the Defendant/Petitioner : Mr. Rupak Ghosh, Advocate,

Mr. Nikunj Berlia, Advocate
Mr. Varun Kothari, Advocate

Last Heard on : August 11, 2022

Judgment on : August 30, 2022

Shekhar B. Saraf, J.:

1. The petitioner (the defendant in C.S. No. 205 of 2017) Klowin

Infrastructure Private Limited had filed this application bearing G.A.

No. 3 of 2021, praying for recalling or setting aside of the ex-parte

decree dated June 12, 2019 passed by this Court. The application has
 2

been filed under Order IX Rule 13 of the Code of Civil Procedure, 1908

(hereinafter referred to as ‘CPC’). The petitioner also prays for an order

of injunction restraining the plaintiff to proceed in E.C. No. 393 of

2019 which has been filed pursuant to the ex-parte decree passed by

this Court on June 12, 2019.

2. The facts of the matter are as follows:-

a) The plaintiff company and the defendant 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.

 3

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 contesting the instant suit the defendant did not

enter appearance either in person or through its advocate. Due

to such conduct of the defendant the suit was fixed for hearing

as ‘Undefended Suit’ and thereafter an ex-parte decree dated

June 12, 2019 was granted in favour of the plaintiff. This

application seeks recalling of the same.

3. Mr. Rupak Ghosh, counsel appearing on behalf of the

petitioner/defendant has made the following arguments:

a) The petitioner/defendant came to know of passing of the ex-

parte decree dated June 12, 2019 by this court for the first time

on January 5, 2021.

b) The petitioner/defendant was never aware of filing of the present

suit at any given point of time on or before March 26, 2019. In

this regard, the notice under Section 11 of the Arbitration and

conciliation Act, 1996 dated March 18, 2019 and the reply of the

plaintiff’s advocate dated 26th March, 2019 have been presented.

 4

c) The petitioner/defendant alleges that the then advocate of the

defendant failed or neglected to take proper steps to follow up

the proceedings in the instant suit wherein the ex-parte decree

dated June 12, 2019 has been passed.

d) The petitioner/defendant states that it would appear clearly

from the cause title of the instant suit that the defendant is

described to have its registered office at Plot No. 638, Urla

Industrial Complex, Raipur, Chhattisgarh, however, the said

address of the petitioner/defendant has changed to BSNL Office,

Bidhansabha Road, Police Station-Morwa, Raipur, Chhattisgarh

based on an online application dated March 11, 2019, made

before the Ministry of Corporate Affairs by the defendant. In this

regard, documents from the Ministry of Corporate Affairs

showing such application for change of address of the defendant

have been presented.

e) The petitioner/defendant argues that the plaintiff was informed

of such change of address via advocate’s letter dated March 18,

2019, but, despite such knowledge of change of address of the

defendant, the plaintiff deliberately did not take any steps for

amendment of the plaint recording the correct address of the

defendant.
 5

f) It is submitted by the petitioner/defendant that the plaintiff got

an order for substituted service under Order 5 Rule 20 of the

CPC through publication of notice in the Central Chronicle

newspaper and the whole suit has been tried, heard and

disposed of on 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

 6

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 upon the defendant prior to amendment of the plaint and

subsequent to the amendment of the plaint. As per Sheriff’s

report, on both occasions when the petitioner was served by

speed post, the defendant refused service. It is submitted that

such refusal amounts to good service and the counsel for the

respondent has placed reliance on N. Parameswaran Unni v. G.

Kannan reported in (2017) 5 SCC 737 to support this

argument. The relevant paragraphs of the judgement are

mentioned below:

“13. It is clear from Section 27 of the General

Clauses Act, 1897 and Section 114 of the Evidence Act,

1872, that once notice is sent by registered post by

correctly addressing to the drawer of the cheque, the

service of notice is deemed to have been effected. Then

requirements under proviso (b) of Section 138 stand

complied, if notice is sent in the prescribed manner.

However, the drawer is at liberty to rebut this presumption.

14. It is well settled that interpretation of a statute

should be based on the object which the intended

legislation sought to achieve:

 7

“It is a recognised rule of interpretation of statutes that

expressions used therein should ordinarily be understood

in a sense in which they best harmonise with the object of

the statute, and which effectuate the object of the

Legislature. If an expression is susceptible of a narrow or

technical meaning, as well as a popular meaning, the Court

would be justified in assuming that the Legislature used

the expression in the sense which would carry out its object

and reject that which renders the exercise of its power

invalid” [New India Sugar Mills Ltd. v. CST, AIR 1963 SC

1207].

15. This Court in a catena of cases has held that

when a notice is sent by registered post and is returned

with postal endorsement “refused” or “not available in the

house” or “house locked” or “shop closed” or “addressee

not in station”, due service has to be presumed [Jagdish

Singh v. Natthu Singh, (1992) 1 SCC 647; State of

M.P. v. Hiralal, (1996) 7 SCC 523 and V. Raja Kumari v. P.

Subbarama Naidu, (2004) 8 SCC 774 : 2005 SCC (Cri) 393]

. Though in the process of interpretation right of an honest

lender cannot be defeated as has happened in this case.

From the perusal of relevant sections it is clear that

generally there is no bar under the NI Act to send a

reminder notice to the drawer of the cheque and usually

such notice cannot be construed as an admission of non-

 8

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 judgement upon admission and another application

being G.A. No. 1908 of 2018 for amendment of the plaint, both

these applications were served upon the defendant but despite

 9

having such knowledge he chose to stay away. Further, in G.A.

No 3204 of 2017 an order dated January 18, 2018 was passed

wherein it was recorded that in spite of service the defendant

was not represented.

e) It is argued by the respondent that once a suit is transferred to

the warning list of the undefended suits, the defendant cannot

enter appearance without special leave being obtained from the

Court. Reliance has been placed on the provisions of Chapter

VIII Rule 17 and 19 of the Original Side Rules of this Court

wherein the defendant has to file an application under Chamber

Business of the Court praying for special leave to appear and

contest the suit.

Observations & Analysis

5. I have heard the counsel appearing for the respective parties and

perused the materials on record.

6. The learned counsel for the petitioner/defendant has prayed for the

setting aside of the ex-parte decree under O.IX, R. 13 of the CPC.

Therefore, it would be prudent that the relevant provisions are

reproduced which provides as follows:

 10

13. Setting aside decree ex parte against

defendant.— In any case in which a decree is passed ex parte

against a defendant, he may apply to the Court by which the

decree was passed for an order to set it aside; and if he satisfies

the Court that the summons was not duly served, or that he was

prevented by any sufficient cause from appearing when the suit

was called on for hearing, the Court shall make an order setting

aside the decree as against him upon such terms as to costs,

payment into Court or otherwise as it thinks fit, and shall appoint

a day for proceeding with the suit:

Provided that where the decree is of such a nature that it

cannot be set aside as against such defendant only it may be set

aside as against all or any of the other defendants also:

Provided further than no Court shall set aside a decree

passed ex parte merely on the ground that there has been an

irregularity in the service of summons, if it is satisfied that the

defendant had notice of the date of hearing and had sufficient

time to appear and answer the plaintiff's claim.

Explanation. —Where there has been an appeal against a

decree passed ex parte under this rule, and the appeal has been

disposed of an any ground other than the ground that the

appellant has withdrawn the appeal, no application shall lie

under this rule for setting aside that ex parte decree.

 11

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 prevented for “sufficient cause”, the court may set

aside the ex- parte decree and restore the suit to its original

position.”
 12

9. It is the case of the petitioner that the writ of summons was not duly

served upon him by the respondent. Therefore, the natural

progression would be to examine if the facts exist to show that the

writ of summons was not duly served upon the petitioner.

10. The respondent/plaintiff had filed a suit titled C.S. 205 of 2017 on

September 08, 2017 and that the service of writ of summons of this

suit was attempted by the process server through Learned District

Judge, Raipur on February 10, 2018. The Deputy Sheriff’s report

dated May 03, 2018 records the remark “could not be served upon the

defendant as the company had left premises about 3 years ago”.

Whereas, with regards to the service through speed post with A/D, the

report mentions the packet was received in the Sheriff’s office with

remark as – “undelivered packet marked refused”.

11. The respondent/plaintiff moved an amendment application dated July

10, 2018 seeking amendment of the plaint (being G.A. No. 1908 of

2018 in C.S. 205 of 2017), the service of the amendment application

was returned with the endorsement “item delivery attempted

addressee moved”.

12. Thereafter, substitute service of amendment application was permitted

and the same was duly published in newspapers on August 24, 2018

containing prayers of the amendment application.

 13

13. The amendment application was henceforth allowed by this Court on

September 13, 2018 and that the original writ of summons of the

amended plaint and one duplicate copy of the writ of summons along

with one copy of plaint was despatched through the office of the

Sheriff on October 09, 2018 to the learned District Judge, Raipur.

However, the Sheriff’s office did not receive 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, 2018with the endorsement

“undelivered packet marked insufficient address”.

14. Subsequently, the respondent/plaintiff was allowed substituted

service by this Court on December 13, 2018 and the same was

published on December 23, 2018 advertising the prayers of the

amended plaint. In the meanwhile, the respondent/plaintiff also got a

fresh writ of summons along with copy 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

 14

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 filed, suit may be

transferred to the Peremptory Undefended List. – Except as

provided by Chapter X, rule 27, (a) where the written statement of

a sole defendant is, or the written statements of all the

defendants are, not filed within the time fixed by the summons,

or within such further time as may be allowed, or (b) where one

or more of several defendants has or have failed to enter

appearance, and the other or others has or have entered

appearance but failed to file a written statement within the time

fixed by the summons or further time allowed, or (c) where a

defendant, who having obtained an order for transfer of a suit to

this Court under section 39 of the Presidency Small Cause Court

 15

Act (XV of 1882), and having been directed under the provisions

of section 40(2) of that Act to file a written statement, has failed

to file the same within the time fixed, the suit shall, unless

otherwise ordered by the Judge, Registrar or Master, upon

requisition by the plaintiff in writing to the Registrar and

production of a certificate showing such default, be transferred to

the peremptory list of undefended suits.”

From the above Rule, 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.

17. It is axiomatic that any petitioner (in this case the

respondent/plaintiff) has to approach the Court with ‘clean hands’

based on good faith and has to produce before the Court all material

facts that are relevant for adjudication of the said matter. The

principle of uberrima fides – abundant good faith – as stated in The

King -v- The General Commissioners for the purpose of the

Income Tax Acts for the District of Kensington reported in (1917)

1 KB 486 applies in the present case. A litigant who does not bring on

record the relevant true facts before the Court, does not deserve to get

any relief from the Court.

 16

18. As authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd.–

v- State of Bihar and others reported in (2004) 7 SCC 166,

suppression of a material fact by a litigant disqualifies such litigant

from obtaining any relief. The relevant portion has been extracted

below:

“13. As a general rule, suppression of a material fact by a

litigant disqualifies such litigant from obtaining any 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."

 17

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 approaches the Court must give full and fair

disclosure of all the materials.

21. From the materials on record, it is apparent that the

petitioner/defendant could not be served through the Court with the

original plaint, the amended plaint and the writ of summons of the

amended plaint as it was not present in the address as mentioned in

the service. This is also buttressed by the fact that that the

petitioner/defendant gathered knowledge about the pendency of this

instant suit only when it received a reply dated March 26, 2019 from

respondent/plaintiff’s advocate in response to its legal notice dated

March 18, 2019 invoking Section 11 of the Arbitration and

Conciliation Act, 1996. Therefore, it would be correct to state that all

the service were being made to the incorrect address and/or

insufficient address denying the petitioner/defendant the basic right

to present and defend its case.

As far as the speed posts with A/D are concerned, the same

were also returned with remarks such as ‘addressee moved’ and

'insufficient address’. In any case, this Court would rely more on

service through Sheriff’s office by way of personalized hand-delivery of

 18

such documents by the process server over the service through speed

post.

22. In view of the above discussions, I am satisfied that the original plaint,

the amended plaint as well the writ of summons for the amended

plaint could not be duly served upon the petitioner/defendant

company, and consequently, the petitioner/defendant was prevented

from appearing in the instant suit. In addition to this, an order to

transfer this suit to undefended list was secured from this Court by

way of suppression of material facts. In my opinion, there has been an

abuse of process of Court on part of the respondent/plaintiff to have

suppressed the said material facts to secure transfer of the instant

suit to the undefended list.

23. Accordingly, this application bearing G.A. No. 3 of 2021 seeking the

recalling/setting aside of the ex parte decree in C.S. No. 205 of 2017

dated June 12, 2019 is hereby allowed. There shall be no order as to

costs.

24. As the defendant in the suit is aware of the suit proceeding now,

service of writ of summon is dispensed with. The defendant is directed

to file its written statement within 45 days. I make it clear that no

extension of time would be granted for filling of written statement

 19

without specific orders obtained from this Court in accordance with

law.

25. Urgent photostat certified copy of this order, if applied for, should be

made available to the parties upon compliance with the requisite

formalities.

(SHEKHAR B. SARAF, J.)