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Judgment
NAVIN CHAWLA, J. (ORAL)
I.A. 20926/2022 and O.A. 72/2022
The present Chamber Appeal has been filed by the defendant no.2, challenging the Orders dated 30.10.2019 and 21.11.2019 passed by the learned Joint Registrar (Judicial).
By the Order dated 30.10.2019, it was recorded that the defendant no.2 stands served with the summons issued in the suit by way of publication in the newspaper. By the subsequent Order dated 21.11.2019, as none was appearing for the defendant no.2 and as the written statement was also not filed, the right of the defendant no.2 to file the written statement was closed.
It is the case of the defendant no.2 that the defendant no.2 has an estranged relationship with her husband, who is the defendant no.1 herein. She states that she had no knowledge about the pendency of the present suit till November, 2022, and that she was never served with the summons/notice issued by this Court. She states that it was only on 23.11.2022, when some bank official of the plaintiff pasted a notice of taking over symbolic possession of the suit property, that is, House No.H-3/97, Sector 18, Rohini, Delhi-110085, that the defendant no.2 came to know about the pendency of the present suit. She states that thereafter, she immediately made enquiries and consulted her lawyer and was informed of the pendency of the present suit seeking recovery of the money which was borrowed by her ex-husband, that is, the defendant no.1, from the plaintiff bank by pledging her property, that is, the suit property.
The defendant no.2 submits that due to the estranged relationship with her husband, that is, the defendant no.1, the marriage of the defendant nos.1 and 2 was also dissolved by an Order dated 07.01.2016 passed by the learned Family Court.
She further states that she has purchased the suit property by way of three different registered Sale Deeds dated 25.02.2005, 10.03.2005 and 24.03.2005. She also denies her signatures on any documents by which the defendant no.1 has availed of the credit facility from the plaintiff bank. She further states that the original title documents of the suit property are with her.
It is further stated in the application that the non-appearance of the defendant no.2 in the present suit is unintentional and bona fide and that the defendant no.2 shall suffer grave irreparable injury in case the present appeal is not allowed.
The defendant no.2 has also filed another Suit, being CS(COMM) 877/2022, against the plaintiff herein, inter alia praying for cancellation of the loan documents, declaration, and injunction. This Court by its interim Order dated 23.04.2024 passed in CS(COMM) 877/2022, has restrained the plaintiff herein from taking any further steps in the proceedings pending under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, ‘SARFAESI Act’) against the suit property. The said order continues till date.
On the other hand, the learned counsel for the plaintiff submits that the defendant no.2 was sought to be served at the suit property, where she admittedly resides. It is only when the said service could not be effected, that the defendant no.2 was then served by way of publication. He submits that the defendant no.2 has also signed on the loan documents and is, therefore, falsely denying her liability under the same.
I have considered the submissions made by the learned counsels for the parties.
Whether the defendant no.2 is liable under the loan documents and whether the plaintiff has a right over the suit property, can only be determined at the trial. The fact remains that the defendant no.2 was served by way of publication. The defendant no.2 has vehemently denied having received the prior notice/summons issued by this Court.
In the Order dated 15.07.2019, it was recorded as under:
“The present suit is for recovery of a sum of Rs.3,27,91,059/- against the Defendants. Defendant No.2, Ms. Neeru Gupta, is the wife of Mr.Ramesh Gupta. However, learned counsel for Defendant No.1 submits that Defendant No. 2 has been divorced from Defendant No.1 for more than six years. Ld. counsel for the Defendant No.1 agrees to provide Defendant No.2's contact details as may be available. Let the needful be done within two weeks. Defendant No.1 submits that costs of Rs.7,000/- have been paid and the written statement is on record.”
Thereafter, by the Order dated 03.09.2019, the learned Joint Registrar (Judicial), while allowing the defendant no.2 to be served through publication, recorded as under:
“Learned counsel for plaintiff submits that learned counsel for defendant no.1 has informed him that no fresh address of defendant no.2 is available with defendant no.1. It has been further stated by learned counsel for plaintiff that address available on record is last known address of defendant no.2. In view of contents of IA and service report on summons, I am satisfied that defendant no.2 could not be served by way of ordinary mode of service, hence, present IA is allowed. Let D-2 be served by way of publication in newspaper 'the Statesman' English Edition and 'Rashtriya Sahara' Hindi edition on PF & necessary charges for next date of hearing. Copy of process be given dasti to plaintiff. This IA is accordingly disposed off.”
From the reading of the above Orders, it is clear that no proper steps were taken to ensure the service of the summons of the suit, through the appropriate mode, on the defendant no.2, before resorting to service through publication.
In my view, therefore, the defendant no.2 has been able to make out a good case for her non-appearance prior to the filing of the present Appeal.
As noted hereinabove, the defendant no.2 has also filed her own independent suit, that is, CS(COMM) 877/2022, which is pending adjudication before this Court.
For the reasons stated hereinabove, the delay in filing the present Appeal is condoned and the Appeal is allowed.
I.A. 20807/2022, I.A. 1825/2023, I.A. 8781/2023
The learned counsel for the plaintiff submits that this Court, on 21.12.2022, had recorded the statement of the learned counsel appearing for the plaintiff that the plaintiff shall not take any precipitative steps to take physical possession of the Suit Property. He submits that on the said date, the main counsel was not appearing and therefore, the statement be allowed to be withdrawn.
On the other hand, the learned counsel for the defendant no.2 submits that as noted hereinabove, this Court by its Order dated 23.04.2024 passed in CS(COMM) 877/2022, has already restrained the plaintiff herein from taking any further steps against the suit property under the SARFAESI Act.
Keeping in view the Order dated 23.04.2024 passed in CS(COMM) 877/2022, the present applications are disposed of, continuing the said order in the present suit as well while binding the parties to the order passed in CS(COMM) 877/2022.
The plaintiff shall, however, be at liberty to seek vacation/modification of the present order, if so advised, and in accordance with the law.
CS(COMM) 1117/2018
The defendant no.2 shall file the written statement within the prescribed period, starting from today. Along with the written statement, the defendant no.2 shall also file the affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record
Liberty is granted to the plaintiff to file the replication within the prescribed period after receipt of the written statement. Along with the replication, if any, filed by the plaintiff, the affidavit of admission/denial of documents of the defendant no.2 shall be filed by the plaintiff, without which the replication shall not be taken on record.
It is noticed that none is appearing for the defendant no.1 since the last many dates. The defendant no.1 is accordingly proceeded against ex-parte.
List before the learned Joint Registrar (Judicial) on 4th December, 2024.