LIVEWELL AVIATION SERVICES PVT. LTD. THROUGH ITS DIRECTOR, NEW DELHI  Vs SHRI RAJESH CHAWLA

CM(M) 37/2021 Page 1
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 25.01.2021

+ CM(M) 37/2021 & CM APPL. 1784/2021
LIVEWELL AVIATION SERVICES PVT. LTD. THROUGH
ITS DIRECTOR, NEW DELHI ….. Petitioner
Through: Mr.Arvind Kumar Sharma,
Adv.
versus
SHRI RAJESH CHAWLA ….. Respondent
Through: None.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA , J. (Oral)
1. This petition has been heard through video conferencing.
2. This petition has been filed by the petitioner feeling aggri eved
of the order dated 10.02.2020 passed by the learned Additional
District Judge -06, West District, Tis Hazari Courts, Delhi in M.No.
51/2019 titled Shri Rajesh Chawla vs. Livewell Aviation Services Pvt.
Ltd., dismissing the application filed by the peti tioner herein under
Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting
aside the ex parte judgment and decree dated 07.03.2018.
3. By the judgment and decree 07.03.2018 , the Suit filed by the
respondent herein , being CS No. 8583/201 6, was d ecreed in favour of
the respondent allow ing the claim of the respondent towards S ervice
Tax alongwith interest. The petitioner thereafter filed an application
on 12.12.2018 seeking setting aside of that decree. The said
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application has however been dismiss ed by the learned Trial Court
observing as under: –
“11. Prior to considering the said contention
raised on behalf of plaintiff/respondent, it is relevant
to note that in the present case plaintiff was cross
examined on behalf of defendant and the case was at
the stage of Defendant evid ence when Defendant
stopped appearing before the Court and the DE was
closed on 09.08.2017 and thereafter, case was listed
for final arguments.
12. On 16.10.2017, defendant was given an
opportunity to file written arguments o r to advance
the arguments and thereafter, on 07.03.2018
judgement and decree was passed.
xxxxxx
18. Record of the case would reveal that present
suit was instituted in September 2014 and Plaintiff
evidence was closed on 13.01.2017 and case was
fixed for D efendant evidence on 08.03.2017 and
thereafter, case was listed for Defendant evi dence
on 28.04.2017. Defend ant was directed to file
evidence by way of affidavit with an advance copy to
the counsel for plaintiff. It was also recorded that
even list of wi tness was not filed. It is als o relevant
to mention that on 28.04.2017, direction was given
to the Defendant to file the evidence by way of
affidavit.
19. On 30.05.2017, opportunity was granted to
the defendant to lead evidence and court notice was
also i ssued to the defendant for 09.0 8.2017. On
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09.08.2017, Defendant evidence was closed and the
case was fixed for final arguments fo r 16.10.2017,
15.11.2017, 25. 11.2017, 18.12.2017, 07.03.2018,
the judgment and decree was passed.
20. Plea taken by the applic ant/defendant in his
applicatio n is that next date of hearing i.e.
30.05.2017 was not posted in the diary of the
counsel for defendant. Perusal of the vakalatnama
filed on behalf of defendant would indicate the name
of M.V.Kini and Co. was shown in which the name
of four advocates were mentioned and it is not
specified as to how a single date i.e. purported to be
missed on 28.04.2017 would create a situation that
for a period of more than 1.5 years it would neither
come into the knowledge of applicant/defe ndant nor
to his counsel that judgment and decree was already
pronounced on 07.03.2018. Not a single document
has been placed on record to show that there is a
due diligence on the part of defendant to inquire
about the fate of his case which is at the st age of
Defendant evidence since 13.01.2017. In the
present case, it is not only the question of default of
one or two dates of hearing as perusal of
proceedings would indicate that as many as 7 dates
within a span of more than one year has passed b ut
no steps were taken by either couns el for defendant
or defendant. There is a total lack of due diligence
on the part of defendant and counsel for defendant.
21. It is also relevant t o note that even if some
date is missed to be noted down in diary by making
a wrong entry ultimately, the said file/brief is kept at
some place and some denotion is mentioned with
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regard to the next date of hearing but in the present
case simply filing a photocopy of a diary after a
period of more than 19 months when the case was
last attended on behalf of def endant does not
appears to be probable or justified.
22. The explanation for not attending the date on
30.05.2017 and absence on number of dates (about
7 in number) by defendant does not provide any
justification to set aside the ex parte judgment and
decree dated 07.03.2018.”

4. The learned counsel for the petitioner submits that in the order
dated 09.08.2017 passed in the Suit, it was recorded that the Court
notice issued to the petitioner f or default of its appearance had been
received back unserved. The petitioner submits that the petitioner was
served at the same address in the Execution Petition filed by the
respondent and therefore, an inquiry should have been held as to how
the Court notice issued during the pendency o f the Suit had come back
unserved.
5. The learned counsel for the petitioner further submits that even
otherwise, on merits , grave injustice would be caused to the petitioner
incase the petitioner is not allowed to defend the Suit and the ex parte
decree is not set aside.
6. I am not convinced wit h the arguments made by the learned
counsel for the petitioner. As recorded in the impugned order, on
13.01.2017 , the respondent ’s evidence was closed and the case was
fixed for petitioner’s evidence on 08.03.20 17. Thereafter it was listed
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on 28.04.2017. On 30.05.2017 , final opportunity was granted to the
petitioner to lead evidence and Court Notice was issued for
09.08 .2017 . As recorded in the order dated 09.08.2017 , the Court
notice was returned unserved. There after also the case was listed for
final arguments on 16.10.2017, 15.11.2017, 25.11.2017, 18.12.2017
and 07.03.2018. It is only thereafter that an ex parte judgment and
decree was passed by the learned Trial Cour t on 07.03.2018.
Thereafter also, no endeavo ur was made by the petitioner to find out
the s tatus of the Suit. It is only on 12.12.2018, after the petitioner ha d
been served with the notice of the Execution Petition that the
petitioner finally woke up and filed the application.
7. While the petitione r claims that the date of 30.05.2017 had been
wrongly written by the counsel representing the petitioner before the
learned Trial Court, there is no explanation for not following up on the
case thereafter for a period of almost one year and even thereafter till
notice on Execution Petit ion filed by the respondent was rece ived.
8. The learned counsel for the petitioner submits that this was
because the petitioner was situated at Mumbai. However, the same
cannot be a valid justification for the non appearanc e of the petitioner.
It is not only for the lawyers to keep a track on the case but also for
the litigant to be vigil ant. By putting the b lame on the lawyer , the
litigant cannot wash awa y its own neglig ence. The Court cannot
certainly come to the aid of su ch a litigant.
9. As far as the subm issions of the learned counsel for the
petitioner on the merit of the decree are concerned, the same cannot be
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gone into in th e present proceedings. This is not an appeal filed
against the decree.
10. Accordingly the pr esent petition is dismissed. There shall be no
order as to cost.
NAVIN CHAWLA, J
JANUARY 25, 2021 /rv

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