Application under Order IX Rule 13

QUESTION:

MGR Developers with its head office in New Delhi is building a township in
Cybercity, Gurgaon. Raghav is an employee with a Delhi based law firm and plans to
invest in a Villa in the township being built by MGR Developers. Raghav contacts
MGR Developers and is informed that a Villa will cost him 3 Crores and Raghav will
have to pay 10 Lacs as earnest Money at the time of booking of the Villa. Raghav
agrees to this stipulation and signs the contract with MGR Developers at the Vasant
Kunj, New Delhi office, who issue him a receipt against the earnest money and
promise to hand over possession in three years time. In the meantime Raghav is
expected to raise a loan and pay 80% of the balance cost towards the Villa. Raghav
approached ICPT Bank (Mumbai), with its branch at Bhikaji Cama Place, New Delhi
for a loan. The loan is sanctioned in favour of Raghav and ICPT Bank disburses the
necessary sum to MGR Developers on behalf of Raghav. Raghav writes to MGR
Developers for issuance of allotment letter in his favour. But MGR Developers fail to
do the same. In the meantime Raghav starts defaulting in his repayment of loan
amount and his loan amount is classified as NPA / Bad / Non paying / irregular
account. Raghav decides to file a suit for recovery on 02.01.2014 against MGR
Developers in Delhi High Court making the Bank a proper party, however giving the
address of the Head office of the Bank at Mumbai. Raghav has concealed that he has
defaulted in repayment to the bank and the bank has initiated separate proceedings
against him. The Court issues a notice to both defendants at the address provided by
Raghav. MGR Developers appears before the Court and files a written statement. The
Bank does not appear despite service at Mumbai and is proceeded against exparte on
05.04. 2014. The court decrees the suit in2 favour of Raghav on 31.10.2015. On or
about 15.11.2015, ICPT Bank, Bhikaji Cama Place Branch is informed by the builder,
regarding the decree in favour of Raghav. Aggrieved by the order of the Court, ICPT
Bank which has actually made the payment against the subject Villa to MGR
Developers has approached you for advice. Prepare the requisite draft to initiate
whatever proceedings are necessary on behalf of the bank, in the appropriate court,
indicating the court fee and the period of limitation, if any.

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 IN THE COURT OF SMT. HIMA KOHLI
IN THE HIGH COURT OF DELHI AT NEW DELHI

Application No. . of 2015

IN THE MATTER OF:

S. NO. PARTICULARS PAGES

1 APPLICATION OF THE DEFENDANT NO. 2 4
UNDER ORDER IX, RULE 13, READ WITH
SECTION 151 CODE OF CIVIL PROCEDURE
FOR SETTING ASIDE EX PARTE DECREE

2 AFFIDAVIT IN SUPPORT THEREOF 6

3 ANNEXURE- A
AUTHORISATION LETTER
4 ANNEXURE- B
COPY OF DECREE DATED 31.10.2015
PASSED BY THIS HONBLE COURT IN SUIT
NO. .. OF 2015 TITLED AS RAGHAV Vs.
MGR DEVELOPERS & ICPT BANK
5 ANNEXURE- C
COPY OF CONTRACT BETWEEN MGR
DEVELOPERS AND RAGHAV
6 ANNEXURE- D
COPY OF SANCTION LETTER
Raghav...Plaintiff
Versus
MGR Developers & ICPT Bank .....Defendants

Suit No.: _______ of 2015

INDEX

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 IN THE COURT OF HIMA KOHLI
IN THE HIGH COURT OF DELHI AT NEW DELHI

Application No. . of 2015

IN THE MATTER OF:

Raghav...Plaintiff
Versus
MGR Developers & ICPT Bank .....Defendants

Suit No.: _______ of 2015

Decreed on 31.10.2015, ex parte.

APPLICATION OF THE DEFENDANT NO. 2 UNDER ORDER IX, RULE 13,

READ WITH SECTION 151 CODE OF CIVIL PROCEDURE FOR SETTING
ASIDE EX PARTE DECREE
Respectfully showeth:
The defendant states as under:
1. That the above case was decreed ex parte against the defendant of
31.10.2015 (Annexure- B).
2. That the applicant respectfully submits before this Honble Court that
the fair reading of the plaint reveals that the plaintiff in the suit is an
employee of a Delhi based law firm, and had signed a contract
(Annexure- C) with MGR Developers for purchasing a Villa of Rs. 3
Crores, of which he had paid Rs.10 Lacs as earnest money and
received a receipt for the same. The plaintiff had raised a loan from the
defendant bank for 80% of the payment and the same was sanctioned
to the plaintiff (Annexure- D). In furtherance to the same, it is humbly
submitted that the head office of the Bank was made a party to the suit
and the branch office, which granted the loan to the plaintiff was not
duly intimated about the present suit.

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 3. That since at no point of time, any court notice or summons were
received by the defendants bank or the counsel of the bank therefore
there was no such occasion that the defendant bank could have come
to know about the pendency of proceeding.
4. That had the applicant been served with summons or had any
knowledge about pendency of the proceeding, respondent bank would
have definitely appeared before the Honble Court and would have
looked after the matter.
5. That the non-appearance of the respondent bank during the pendency
of the suit was neither intentional nor deliberate but was due to the
above said reasons.
6. That the defendant was prevented from appearing at the hearing of the
suit and defending it on account of absence of service of the summons
of the suit on the defendant at the branch office.
7. That the applicant came to know of the ex parte decree on 15.11.2015
by co-defendant and that there is no delay and the present application
is filed within time prescribed i.e. within thirty days of the order passed
by this Honble Court.
8. An affidavit in support of the petition is submitted herewith.

It is therefore most respectfully prayed that this Honble Court

may be pleased to set aside the ex parte decree dated 31/10/2015
passed by this Honble Court and the respondent bank may kindly be
allowed to defend the case on merits in the interest of justice in
accordance with law.

Place: New Delhi Defendant.

Date: 18.11.2015 Prasham Goel

Advocate for the Defendant.

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 IN THE COURT OF SMT. HIMA KOHLI, HIGH COURT OF DELHI

Application No. . OF 2015

IN
(SUIT NO OF 2015)

IN THE MATTER OF:

Raghav..Plaintiff
Vs.
MGR Developers & ICPT Bank .....Defendants

AFFIDAVIT

I, Prasham Goel, resident of A-283, Derawal Nagar, Delhi- 110009 do hereby

solemnly affirm and state as under:

1. That I am representing the ICPT Bank (Defendant No. 2) in the

abovementioned suit and fully conversant with the facts of the case
and hence competent to depose by way of the present affidavit.

2. That I have read and understood the contents of the accompanying

plaint which has been drafted on my instruction and I say that the
contents of the same are true and correct to the best of my
knowledge.

DEPONENT

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VERIFICATIONS:

I, XYZ (on behalf of ICPT Bank) do hereby verify that the contents of paras

1 to 8 of the application to be true and correct on the basis of information

derived from the record of the defendant firm believed to be correct.

Verified at New Delhi on this day of November, 2015.

DEPONENT