Delhi District Court
Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015
Author: Ms. Archana Sinha
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                         IN THE COURT OF DR. ARCHANA SINHA
           ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL−03) 
                                      TIS HAZARI COURT / DELHI
M. No. : 19/2013   in suit No. No. 1018/2008. 
Titech Engineers Pvt. Ltd.                                                 ..... Plainti
Vs.
Tirumula Tirupati Devasthanams ....Defendants/Petitioners 12.05.2015 ORDERS (On application
dated 05−08−2013 moved under Order 9 Rule 13 CPC)
1. By way of this misc. application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151
CPC, the J.Ds./the defendants in the suit ( hereinafter referred as the petitioners) have prayed for
setting aside the judgment/decree dt. 06.12.2012 passed by the Ld. Predecessor of this Court, in Suit
No. 1018/2008.
M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 1/19
2. The brief facts in narrow compass, relevant and necessary for the disposal of this application, are
that the Decree Holder/the plaintiff in the suit ( hereinafter referred as the respondent) had
accepted the tender invited by the petitioners/defendants for constructing its staff quarters at
Andhra Ashram Rishikesh and the petitioners/defendants awarded the work contract for the value
of Rs. 52,73,188/− and the respondent/plaintiff had expected the normal profit @ 15 % of the
contract rate but the contract was rescinded illegally by the defendant thereby a suit for recovery of
an amount of Rs. 17,57,311/− with pendentelite and future interest was filed and the suit was
decreed ex−parte for the claimed amount of Rs. 17,57,311/− with pendentelite and future interest @
12 % per annum till its realization vide Judgment/Order dated 06−12−2012.
3. In the application, it is averred that the case of the petitioners/defendants was represented by Mr.
B. Parthasarthi, an Advocate of the Supreme Court but as he was not regularly M. No. : 19/2013
Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 2/19 appearing in the District
Courts, he assigned the case to Mr. R.C. Bhalla, an Advocate who was pursuing the case on behalf of
Mr. B. Parthasarthi and under his guidance but unfortunately Mr. B. Parthasarthi expired in the
year 2010−2011 and the Govt. of Andhra Pradesh had appointed a new lawyer in the Supreme Court
and all the case files including that of this case were collected by the officials of the
petitioners/defendants from Mr. R.C. Bhalla, the counsel who then stopped appearing in the present
case believing that the case will be attended by the new counsel so appointed by the State of Andhra
Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015
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Pradesh.
And that vide letter dated 28−05−2013, the petitioners/defendants asked Sh. R.C. Bhalla, the
Advocate, to appear on 01−07−2013 in another case titled as Titech Engineers Pvt. Ltd. Vs. Tirmula
Tirupati Devasthanams, and there in that court, he came to know that in the present case an ex−
parte decree has been passed against the petitioners/defendants on 06−12−2012 and only on
obtaining 'knowledge' on 01−07−2013 about the decree, he had applied for M. No. : 19/2013 Titech
Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 3/19 the certified copy of such
decree/Judgment/order and the copy was received only on 15−07−2013 & then the petitioners/JDs
had moved the present application for setting aside the ex−parte decree dated 06−12−2012.
4. In support of the application, Ld. Counsel appearing for the petitioners has submitted that due to
the death of the previous counsel as the petitioners had lost the track of the case and their non−
appearance was not intentional as they were prevented to appear on the date of hearing for
sufficient cause and on obtaining 'knowledge' on 01−07−2013 about an ex−parte decree passed
against them, they could move the present application praying to set−aside the judgment/decree
dated 06.12.2012 and they may be allowed to contest the suit so that the suit can be decided on
merits.
5. Ld. Counsel for the respondent/plaintiff has vehemently countered the application submitting
that there exits no reasonable ground or sufficient cause in the present application M. No. : 19/2013
Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 4/19 for setting aside the decree
and that the contentions regarding the period of death of Mr. B. Parthasarthi in the year 2010−2011
were factually wrong as Mr. B. Parthasarthi had expired on 25−11−2007 and the petitioners have not
placed any records or details about the appointment of another counsel by the Govt. of Andhra
Pradesh or collection of the case file of this case by petitioners from Sh. R.C. Bhalla, Advocate, after
the death of Mr. B. Parthasarthi as Sh. R.C. Bhalla, the counsel had not only continued appearing for
about 4 years after the date of death of Mr. B. Parthasarthi, in the case during trial upto 17−11−2011
and he has filed his Vakalatnama, duly signed by the petitioners in that case but also even the
present application was moved by the same counsel who had filed his Vakalatnama for them, that
was also duly signed by the petitioners' authorized representative, an Assistant Engineer and no
letter/document of assignment of any of the two cases, issued by Govt. of Andhra Pradesh is filed to
show that the Govt. of Andhra Pradesh used to appoint counsels either in that case or for the
application as alleged, thus, the contentions regarding the M. No. : 19/2013 Titech Engineers Pvt.
Ltd. Vs. Tirumula Tirupati Devasthanams 5/19 obtaining of the knowledge on 01−07−2013 about
passing of this ex−parte decree during the appearance in another case are factually incorrect and not
supported by any document/record to substantiate such contentions and thus the present
application is hopelessly time barred and is liable to be dismissed.
6. I have given my thoughtful considerations to the submissions made by the parties through their
counsels, in the light of the records placed before me.
7. In the instant case, the petitioners/ who were defendants in the suit, were duly served upon the
summons of the suit and thereupon they have caused their appearance on 21−05−2007 through
Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015
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their counsel namely Sh. R.C. Bhalla, an Advocate who had filed his Vakalatnama duly signed by the
executive officer of the defendants ( petitioners) on their behalf and he had filed the written
statement on 03−08−2007 along with the affidavit of one Sh. Chandra Shekhar Reddy, Deputy
Manager of the defendant No. 1 ( JD No. 1) and had sweared the affidavit on behalf of M. No. :
19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 6/19 both the defendant
Nos. 1 & 2 ( JD Nos. 1 & 2).
8. It is observed that as per record the trial had proceeded further and the issues were framed on
12−07−2011 when the matter was posted for 05−09−2011 for PE and then on 17−11−2011, since then
none had appeared on behalf of the petitioners/defendants and on 20−04−2012 the matter was
posted for cross−examination of PW1 with last opportunity given to them for cross−examination of
PW−1 but neither on 13−08−2012 nor on 04−12−2012 none had caused the appearance for the
petitioners/defendants and for the absence for two consecutive dates, the petitioners/defendants
were proceeded ex−parte vide order dated 04−12−2012.
9. Thus, it is clear from record that in the case, the summons of the suit were duly served upon the
petitioners/defendants and they had participated in the trial until 17−11−2011 when the matter was
posted for plaintiff's evidence and thereafter, none had appeared on the dates of hearing until 06−
12−2012 when M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams
7/19 the decree was passed and through the present application, the petitioners have sought setting
aside of the ex−parte decree under the provisions of order 9 Rule 13 CPC on the pretext of obtaining
knowledge of passing of such decree only on 01−07−2013 to seek protection of limitation to be
reckoned from 01−07−2013 for the leave sought of setting aside of such decree through the
application moved on 05−08−2013, after a period of 8 months since the date of decree passed on
06−12−2012.
10. The petition is contested on the ground that it is hopelessly time barred under Article 123 of the
Limitation Act that prescribed a period of 30 days from the date of decree, as the protection to
reckon the period from 01−07−2013, on the ground of obtaining knowledge was not available for the
petitioners nor any sufficient cause shown for preventing them from appearing on the dates of
hearing during trial.
11. Now, to answer such query, the proposition of law u/o. 9 Rule 13 CPC and the Article 123 of
Limitation Act, 1963, for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati
Devasthanams 8/19 purpose of limitation is to be looked into.
12. As per the proposition of law, the horns of Rule 13 of Order 9 CPC can be raised, for setting aside
ex−parte decree against the defendant by moving an application before the Court which passes the
decree, or who is to execute and the Court, if satisfied, can make the orders setting aside such decree
as against the petitioners/applicants upon such terms as to costs, payment or otherwise on the
following satisfaction :
i). that the summons were not duly served or
Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015
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ii). that he was prevented by any sufficient cause from appearing when the suit was
called on for hearing.
And as per proviso, a mandatory caution has been imposed on exercising such powers by the court
directing that:
No Court shall set aside the decree passed ex−parte merely on the ground :
a). that there has been an irregularity in the service of summons
b). if the Court is satisfied that the defendant had notice of the M. No. : 19/2013 Titech Engineers
Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 9/19 date of hearing and had sufficient time to
appear and answer the plaintiff's claim.
13. Also, for invoking of such provisions under Order 9 Rule 13 CPC, the period of limitation as per
Article 123 of the Limitation Act, 1963, provided is for 30 days
a). from the date of the decree ;
or
b). where the summons or notice was not duly served, when the applicant had knowledge of the
decree.
14. Further, the Apex Court in case titled as Parimal Vs. Veena @ Bharti, cited as (2011) 2 SCC 545
has guided for application of these two provisions of law as under:− "In order to determine the
application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant
honestly and sincerely intended to remain present when the suit was called on for hearing and did
his best to do so.
Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. M.
No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 10/19 Therefore, the
applicant must approach the court with a reasonable defence.
Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and
special circumstances in the case at hand. There cannot be a straight jacket formula of universal
application."
15. Also, it is a settled principle of law as settled in case titled as G.P. Srivastava VS. R.K. Raizada &
Others, cited as (2000) 3 SCC 54, wherein the Apex Court has opined that, " Under Order 9 Rule 13
CPC an ex−parte decree passed against a defendant can be set aside upon satisfaction of the court
that either the summons were not duly served upon the defendant or he was prevented by any
"sufficient cause" from appearing when the suit was called on for hearing.
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Unless " sufficient cause" is shown for non−appearance of the defendant in the case on the date of
hearing, the court has no power to set aside an ex−parte decree".
16. The legal propositions as per amended code of CPC has been discussed in a case titled as Sunil
Poddar Vs. Union Bank of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati
Devasthanams 11/19 India, cited as AIR 2008 SC 1006, wherein it was observed that, "The legal
position under the amended code is not whether the defendant was actually served with the
summons in accordance with the procedure laid down and in the manner prescribed in Order V of
the Code, but whether
(i) he had notice of the date of hearing of the suit; and
(ii) whether he had sufficient time to appear and answer the claim of the plaintiff.
Once these two conditions are satisfied, an ex−parte decree cannot be set aside even if it is
established that there was irregularity in service of summons".
17. Now, on application of the guiding principles as laid by the Apex Court and as per the settled
legal propositions under order 9 Rule 13 CPC, to the factual position of the instant case, it is
observed that the summons of the suit were duly served upon the defendants/petitioners who have
caused the appearances in the court through their counsel Sh. R.C. Bhalla, who had filed his
Vakalatnama duly signed by the authorized officer of the petitioners/defendants and even now he is
appearing for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams
12/19 defendants as a counsel for them and thus they joined the proceedings and participated in the
trial from 21−05−2007 until 17−11−2011 and thereafter, they had stopped appearing on their own
until the judgment/decree was recorded on 06.12.2012.
18. The sufficient cause shown and pleaded for non− appearance in the trial was that some time in
the year 2010−11 Sh. B. Parthasarthi, an Advocate of Supreme Court who assigned the case to Sh.
R.C. Bhalla, Advocate, expired and the case files including the file of the present case were collected
by the officials of the defendants/petitioners from Sh. R.C. Bhalla as a new counsel in the Supreme
Court was appointed by the Govt. of Andhara Pradesh and vide letter dated 28−05−2013 from the
defendants he was asked to appear in another case on 01−07−2013 and on that date he came to
know about the ex−parte decree of this case.
19. The correct factual position as brought to the knowledge of this court was that Sh. B.
Parthasarthi, an Advocate of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati
Devasthanams 13/19 Supreme Court had expired on 25−11−2007, the fact was not disputed. No
document was placed on record to show that Sh. R.C. Bhalla, Advocate was assigned the case by Sh.
B. Parthasarthi, an Advocate of Supreme Court or that Sh. B. Parthasarthi was appointed as an
advocate in this case by the Govt. of Andhra Pradesh or that after his death another advocate
practicing in Supreme Court was appointed for this case.
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To the contrary, the vakalatnama of Sh. R.C. Bhalla was duly signed by the executive officers of the
petitioners/defendants and was filed on record on 21−05−2007 and that Sh. R.C. Bhalla, the
Advocate had appeared in the trial upto 17−11−2011 even after 4 years of the death of Sh. B.
Parthasarthi, an Advocate of Supreme Court.
Further, it is observed that no document was placed on record to show that any letter dated 28−05−
2013 of the petitioners/defendants was issued vide which the counsel Sh. M. No. : 19/2013 Titech
Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 14/19 R.C. Bhalla was asked to appear in
another case on 01−07−2013 or that Govt. of Andhara Pradesh appointed another Advocate in this
matter in 2010−11 when the petitioners/defendants had collected the files from Sh. R.C. Bhalla and
even the name of such advocate of Supreme Court was not disclosed to show the bonafide to whom
the petitioners/defendants had handed over the case file of the suit, rather a document has been
placed on record that Sh. R.C. Bhalla was appearing as an Advocate for the defendants/petitioners
in CM(M) Nos. 1151−52/2007 before the Hon'ble High Court of Delhi.
More surprising was that even today the present petition is moved and pursued by the same counsel
Sh. R.C. Bhalla, Advocate who has filed his Vakalatnama on record for the defendants/petitioners,
duly signed by Sh. P. Chiranjeev Kumar, the Assistant Engineer of the defendants/petitioners.
20. Thus, clearly the summons of the suit were duly served M. No. : 19/2013 Titech Engineers Pvt.
Ltd. Vs. Tirumula Tirupati Devasthanams 15/19 upon the petitioner/defendants who caused their
appearances through Sh. R.C. Bhalla, Advocate, and they participated in the trial upto 17−11−2011
from then none has appeared on behalf of the petitioners/defendants in the trial until the decree
and the petitioners/defendants have failed to show any 'sufficient cause', as per the settled
principles above discussed, that the petitioners/defendants honestly and sincerely intended to
remain present when the suit was called on for hearing and did their best to do so or have acted
diligently to appear on the dates of hearing or that there was a sufficient cause for which the
petitioners/defendants could not be blamed for their absence or that they had approached the court
with a reasonable defence or within the prescribed period of limitation to seek remedy.
21. It is clear from the record that they have failed to show that they were prevented to appear and
contest the matter due to some cause that could be treated as sufficient and beyond their control.
M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 16/19
22. Obviously, the period of limitation for invoking the horns of Order 9 Rule 13 CPC as prescribed
under Article 123 of the Limitation Act is 30 days from the date of decree in case the
petitioners/defendants had notice of the date of hearing of the suit and from the record it is clear
that admittedly on 17−11−2011 they had notice of the date of hearing of the suit for 22−12−2011 for
plaintiff's evidence, but they stopped appearing onwards and they had given sufficient time &
opportunities to appear and answer the claim of the plaintiff as they were proceeded ex− parte on
04−12−2012, only after their non−appearance was noted for two consecutive dates.
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23. Thus, in view of the law settled in case titled as Sunil Poddar Vs. Union Bank of India, cited as
AIR 2008 SC 1006, when these two conditions are satisfied, an ex−parte decree cannot be set aside
as it is duly established on record that the petitioners/defendants were duly served with the
summons of the suit and there was no irregularity in the service of the M. No. : 19/2013 Titech
Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 17/19 summons. Thus, the protection
sought on the basis of knowledge on 01−07−2012 and seeking limitation of 30 days from such date
is not available as the period of limitation of 30 days from the date when the petitioners had
knowledge of the decree was available only in the circumstances where the summons or notice was
not duly served upon the petitioners/defendants, in view of the provisions of Article 123 of the
Limitation Act. The petitioners' case is not that the summons were not served upon them to seek
protection of limitation from the date of knowledge of the decree.
Thus, in view of the fact that the summons were duly served upon the petitioners who participated
in the trial for a long period of four years and were not able to show any sufficient cause by which
they were prevented from appearance on the dates of hearing, the period of limitation for the
purpose of the petitioners for 30 days starts from the date of decree and not from the date of
knowledge of passing of the decree. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula
Tirupati Devasthanams 18/19
24. Thus, in the above noted facts and circumstances, the application dated 05.08.2013 moved
under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants, after 8 months
of the date of decree dated 06−12−2012, is hopelessly time barred and therefore, the application
dated 05−08−2013 is being devoid of any merits, stands dismissed. Announced in the open Court
(Dr. Archana Sinha) on 12th day of May, 2015 Addl. District Judge (Central−03) Tis Hazari Courts /
Delhi 12.05.2015 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams
19/19 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 12.05.2015
Present:
Vide separate detailed order announced in the open court, the application dated 05.08.2013 moved
under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants stands
dismissed.
File be consigned to record room.
(Dr. Archana Sinha) ADJ (Central) 03 / Delhi 12.05.2014 M. No. : 19/2013 Titech Engineers Pvt.
Ltd. Vs. Tirumula Tirupati Devasthanams 20/19 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs.
Tirumula Tirupati Devasthanams 21/19
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