Valmiki J. Mehta, J.
C.M. No.34543/2017 (exemption).
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
FAO No.377/2017 and C.M. No.34542/2017 (stay).
2. By this first appeal filed under Order XLIII (1)(d) of the Code of Civil Procedure, 1908 (CPC), the appellant impugns the order of the trial court dated 1.9.2017 by which trial court has dismissed the application under Order IX Rule 13 CPC filed by the appellant/defendant and has refused to set aside the ex-parte judgment and decree dated 29.7.2016 passed in favour of the respondent/plaintiff for a sum of Rs.19,90,652/- along with interest. Money decree was passed in favour of the respondent/plaintiff on account of the respondent/plaintiff doing office interior work for premises of the appellant/defendant at A-147, Sector-63, Noida, U.P.
3. The case of the appellant/defendant in the application under Order IX Rule 13 CPC was that the ex-parte decree dated 29.7.2016 ought to be set aside because the appellant/defendant admittedly was not served at any of the two addresses of the appellant/defendant company as stated in the memo of parties of the suit. It was the case of the appellant/defendant that as per the report of the process server, the appellant/defendant company is said to have left the address and another report with respect to service was that the premises were locked. It is argued that the appellant/defendant had no knowledge of the suit and the appellant/defendant came to know about the ex-parte judgment and decree only when it received a notice of demand under Section 434(1)(a) of the Companies Act, 1956 dated 19.8.2016 and whereafter the said application under Order IX Rule 13 CPC was filed. It is pleaded that the notice under Section 434(1)(a) of the Companies Act was served upon a different address of the Director of the appellant/defendant company at Ananda Homestay, to A-118V, Sector 35, near Sumitra Hospital, Noida, U.P. Accordingly, it was pleaded that the service by publication which took place of the appellant/defendant in the newspaper ‘Statesman’ as also the affixation done at the address of the appellant/defendant as per the memo of parties was not proper service and hence the ex-parte judgment and decree be set aside.
4. The court below for dismissing the application under Order IX Rule 13 CPC has given the following conclusions:-
(i) The two addresses of the appellant/defendant as per the memo of parties in the suit were as House No.A-100, First Floor, Shivalik Malviya Nagar, New Delhi-110017 and A-147, Sector-63, Noida, U.P. and both these addresses continued to be of the appellant/defendant because it is not as if the appellant/defendant is no longer the owner of these two premises.
(ii) Respondent/plaintiff had no address of the appellant/defendant company except with the two addresses given in the memo of parties, and at which addresses two attempts were made in ordinary method to serve the appellant/defendant which failed, and the respondent/plaintiff had checked the website of the Registrar of Companies before filing the application under Order V Rule 20 CPC, and which Registrar of Companies website showed that registered office of the appellant/defendant company continued to be at Shivalik, Malviya Nagar, Delhi and that there was no change of this registered office address of the appellant/defendant company.
(iii) The affixation done of the summons of the suit at the address of the appellant/defendant was correct and the appellant/defendant cannot be allowed to contest the service by affixation once admittedly the appellant/defendant company continued to be at the address where affixation was done.
(iv)No doubt the story put forth by the respondent/plaintiff of the respondent/plaintiff having discovered residential address of the Director Ms. Hemlata Agarwal of the appellant/defendant company at the new address at which the legal notice dated 19.8.2016 was served lacks credence, however, the court below notes that even the resolution dated 1.9.2016 passed for filing of the application under Order IX Rule 13 CPC in favour of Ms. Hemlata Agarwal contained the address of the meeting of Board of Directors at A-100, First Floor, Shivalik, Malviya Nagar, New Delhi and which was the address given of the appellant/defendant company as per the memo of parties in the suit.
5. I completely agree with the aforesaid conclusions and reasoning of the court below inasmuch as it is not and could not be the case of the appellant/defendant company that it had given any of its addresses to the respondent/plaintiff except those two addresses at stated in the memo of parties of the suit plaint. The only other way in which the respondent/plaintiff could have traced out the address of the appellant/defendant company was from the records of the Registrar of Companies and which endeavor the respondent/plaintiff made and which showed that the registered office of the appellant/defendant company continued to be at Shivalik, Malviya Nagar. In fact, the court below has also rightly referred to the fact that resolution dated 1.9.2016 in favour of Ms. Hemlata Agarwal for filing the application under Order IX Rule 13 gives the address of the appellant/defendant company as of Shivalik, Malviya Nagar. Merely because the address at Noida of the appellant/defendant company is found to be locked, and it is stated that same is because of an order of the Labour Commissioner, would not mean that there would not even be a security guard at the gate and in any case in order that this plea of the premises at Noida of the appellant/defendant being closed by the order of the Labour Commissioner, it was necessary that this plea be completely established by filing the order of the Labour Commissioner, what was the extent of the order, whether the order continues to operate or was stayed by the higher court, whether i
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n spite of the order of the Labour Commissioner was the position that there was absolutely nobody at the premises in Noida etc, and all of which pleadings and its substantiation on behalf of the appellant/defendant are missing. This aspect has to be taken with the fact that the appellant/defendant continued to be the owner of the suit property at Shivalik, Malviya Nagar and at which address the endeavor was made for service of the appellant/defendant company and ultimately leading to service by publication and affixation at this address. 6. In view of the above discussion, I do not find any merit in the appeal. Dismissed. Appeal dismissed.