IN THE HON’BLE COURT OF ADDITIONAL DISTRICT

JUDGE, SOUTH WEST DISTRICT, DWARKA COURTS,

DWARKA, NEW DELHI
IA No. /2024
In
Civil Suit No. 794/2017
IN THE MATTER OF:
Dashrath Prasad Shah …Respondent/Plaintiff
Versus
Tara Chand Gupta …Applicant/Defendant
INDEX

S.No. Particulars Page No.

1. MEMO OF PARTIES

2. APPLICATION UNDER ORDER IX RULE

13 READ WITH SECTION 151 OF THE
CODE OF CIVIL PROCEDURE, 1908 FOR
SETTING ASIDE OF EX-PARTE DECREE
PASSED AGAINST THE DEFENDANT/
APPLICANT TARA CHAND GUPTA
ALONG WITH AFFIDAVIT
3. ANNEXURE-A/1

The copy of the Ex-parte judgment dated

05.02.2020
4. ANNEXURE-A/2

The copy of the travel history and passport of

the Applicant
5. ANNEXURE-A/3

The copy of the Order dated 21.07.2018

6. ANNEXURE-A/4

The copy of the order dated 19.09.2018

7. ANNEXURE-A/5

The copy of the Order dated 22.09.2023

wherein the Summons were received back
unserved with the report that the Applicant
does not reside at the given address.
 8. VAKALATNAMA

APPLICANT

Through
NEW DELHI
DATE:
Counsel for the Applicant
 IN THE HON’BLE COURT OF ADDITIONAL DISTRICT
JUDGE, SOUTH WEST DISTRICT, DWARKA COURTS,
DWARKA, NEW DELHI
IA No. /2024
In
Civil Suit No. 794/2017
IN THE MATTER OF:
Dashrath Prasad Shah …Respondent/Plaintiff
Versus
Tara Chand Gupta …Applicant/Defendant

MEMO OF PARTIES
1. Shri Dashrath Prasad Shah
S/o Sh Dina Nath Prasad Shah
R/o H.No. 586 & 587, MS-Block
Ranaji Enclave,Najafgarh
New Delhi
…Plaintiff/Respondent

Versus

2. Shri Tara Chand Gupta

S/o Ram Babu Gupta
R/o H.No. 63 & 64A,1st Floor,
Bhagwati Garden Extn.,
Jain Road, Uttam Nagar
New Delhi-110059

Currently Residing at:

Al Dawasir Dammam,
Kingdom of Saudi Arabia

Also at:
Village Sahwan, Post-Sahwna,
Saran, Bihar-841411

…Defendant/Applicant
Through
NEW DELHI
DATE:
Counsel for the Applicant
 IN THE HON’BLE COURT OF ADDITIONAL DISTRICT
JUDGE, SOUTH WEST DISTRICT, DWARKA COURTS,
DWARKA, NEW DELHI
IA No. /2024
In
Civil Suit No. 794/2017
IN THE MATTER OF:
Dashrath Prasad Shah …Respondent/Plaintiff
Versus
Tara Chand Gupta …Applicant/Defendant

APPLICATION UNDER ORDER IX RULE 13 READ

WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDURE, 1908 FOR SETTING ASIDE OF EX-PARTE
DECREE PASSED AGAINST THE
DEFENDANT/APPLICANT TARA CHAND GUPTA

MOST RESPECTFULLY SHOWETH:

1. The captioned Suit was filed before this Hon’ble Court for
recovery under Order XXXVII CPC, 1908 for an amount
of Rs. 14, 76, 000/- along with interest.
2. The relevant facts pertaining to the captioned Suit are
discussed as follows:
a. The Suit had been filed on the basis of (i) Cheque No.
047376 dated 25.12.2015 for Rs.5,00,000/-; (ii) Cheque
No. 000085 dated 25.12.2015 for Rs. 3,00,000/- and
(iii) Cheque No. 000084 dated 16.12.2013 for
Rs.1,00,000/- whereas balance Rs.5,76,000/- was
claimed as interest @24% per annum without any
covenant in loan agreements dated 22.08.2013;
22.02.2014 and 11.01.2015.
b. The Applicant/Defendant had been proceeded ex-parte
on 23.09.2019.
3. On 05.02.2020, this Hon’ble Court passed an ex-parte
Judgment against the Applicant. The court laid down the
following decision:
a. The Applicant was liable to pay the cheque amount
dated 22.08.2013 and 22.02.2014 mentioned in the loan
agreement dated 11.01.2015.
b. The Respondent was not entitled to recover the amount
for Cheque No. 000084 dated 16.12.2013 as the
Respondent’s relief for recovery was barred by
limitation.
c. Thereafter, in line with the Judgment, the Hon’ble
Court decreed a sum of Rs.8,00,000/- along with
pedente lite interest @ 10% per annum and future
interest @ 6% per annum along with the cost of the suit
against the Applicant/Defendant.
The copy of the aforesaid ex-parte judgment is annexed
and marked herein as ANNEXURE-A/1.
4. The Applicant could not appear before this Hon’ble Court
as the Summons were not duly served upon him. It is
stated that the Applicant has never received any Summons
or plaint of any sort regarding the captioned matter. The
Respondent/Plaintiff never complied with the Hon’ble
High Court of Delhi rules as mentioned below:

"CHAPTER 7 Processes-Civil Court

Part F SERVICE OF THE PROCESSES OF THE
COURTS IN INDIA IN PLACES BEYOND INDIA AND
VICE VERSA

1. Service of summonses by post-Order V, Rule 25, of the

Code of Civil Procedure provides, generally, that if the
defendant resides out of India, and has no agent in India
empowered to accept the service, the summons shall be
addressed to the defendant at the place where he is
residing, and forwarded to him by post, if there be postal
communication between such place and the place where
the Court is situate. In practice, all summonses so sent
should, where possible, be sent by registered post, and
should be "registered acknowledgement due." The letter
containing the summons which should always be sent in an
envelope, should be properly and fully addressed and
prepaid. A copy of the address on the letter should also
kept on the judicial record and care should be taken that
the certificate given by the Postal authorities also contains
the full address on the letter.
2. Service under Order V, Rule 26-If it is not possible to
effect service under Order V, Rule 25, advantage may be
taken of the provisions of Order V, Rule 26. As regards
clause (a) of this rule, no Political Agent has, so far, been
appointed or a Court established with power to serve in
any foreign country in which the defendant resides, a
summons issued by a Court in India under the provisions
of the Code. It is for the State Government to take the
necessary action under clause (b) of this rule.
3. Service under Order V, Rule 20 Where service by post
has been tried and has failed and the mode of service, if
any, provided by Order V, Rule 26 have been availed of,
action may be taken under Order V, Rule 20 of the Code of
Civil Procedure.
4. Instruction re : service under Order 5, Rule 26 Cr. P.C.-
In cases where service is desired to be effected under
Order V, Rule 26, the following instructions should be
followed: (a) Channel of correspondence The summons
should be forwarded in an
envelope through the District Judge, with a covering letter
to the High Court for transmission to the State
Government, duly certified that service by post has been
tried and failed and in what manner it has failed. The
channel of communication within India of summonses for
service in foreign countries is the State Government and
the Government of India, Ministry of External Affairs. The
summons should never be sent direct. An exception is
made in the case of certain countries, viz., the Federation
of Malaya, Iraq and Nepal to which processes may be
forwarded direct by the Indian Court. (b) Date of returns
of Summonses-In no case should be precise date be fixed
in the summons or forwarding letter for the return of the
service. It is impossible for a Court in India to order a
date before which a foreign judicial authority must execute
a request which the foreign judicial authority is under no
obligation to execute at all. A sufficiently long date,
however, in any case not less than four months) may be
fixed for the appearance of the parties before the Court in
expectation or the return of the service after making
allowance (a) for the time which is bound to be taken by
the various channels through which the documents have to
pass, and (b) the time which should be given to the person
on whom service is affected to prepare his case and attend
the Court. (c) Duplicate copies and translation-The
covering letter, both copies of the summonses and all other
documents should be prepared in duplicate and translated
in English and typewritten and must be checked and
legibly signed by the presiding officer of the Court and
should bear the seal of the Court. Where it is not possible
to type them in English they should be neatly and legibly
written by the presiding officer in his own hand writing.
All translations should be certified to be correct. (d)
Names and addresses and translation in foreign language-
The names and addresses of the persons on whom service
of summonses is desired should be neatly and legibly
written and should also be given in the forwarding letter.
The name and address of the Court should be legible, and
its seal should also be legible and properly affixed.
Summonses, notices, copies of plaint and other judicial
documents should be accompanied by translation in
duplicate in the language of the country in which service
is to be affected, at the expense of the party at whose
instance summonses, etc., are issued. Where the party
concerned is unable to prepare such translation a request
should be made that translation be arranged by the
Foreign Office. The approximate charges for translation
into certain foreign language are the same as given in
paragraph 27 of Chapter 10-D, Volume I. Similarly,
request should be made that the executing officer should
cause translations of all the documents sent by him to be
made in English and money for this purpose should be
recovered in advance from the party concerned. (e) Cost of
translation and service-An amount equal to 50 per cent
more than the estimated cost of effecting service and
translation should be recovered from the party concerned
in advance and deposited. This amount need not be sent
along with the process as heretofore but should be sent
when a demand is made to that effect. (f) Presiding officer
responsible for completion of the documents-The
preparation of summonses must not be left to clerks. The
presiding officer of the issuing Court primarily be held
responsible for its accuracy and completeness in every
respect before transmission to the High Court and it is the
duty of the Superintendent to the District Judge to examine
the summonses and its accompaniments carefully and to
see that all instructions have been complied with.
(g) Index and schedule of documents sent-The forwarding
letter should either at the foot thereof contain a schedule
of all the documents sent alongwith it or be followed
immediately by an index of such documents. The first
document should be a concise narrative of the action of
the parties thereto and of the course to be pursued. The
documents should be numbered or lettered so as to
correspond with the schedule or index mentioned above.
(h) Copies to be certified -All copies should be certified by
an official of the Court that they have been examined and
are true copies. Such certified copies should also bear the
seal of the Court. (i) Stitching of papers sent-The
forwarding letter and all its accompaniments should be on
strong paper and sewn together in a parchment paper
cover down the left hand side, the end of the silk, tape or
thread with which they are sewn being brought out on the
front cover and the ends sealed down and the binding
signed and sealed by the Judge so that there is no
possibility of the removal substitution or addition of any
sheet without breaking the seal. (i) Directions to be given
 in forwarding letter-The forwarding letter or the first
annexed document should indicate clearly (a) which is the
actual document (or documents) to be served, and b) if any
special method of service is desired (as opposed to a case
where any method usually employed by the Courts of the
foreign country in question will suffice) the method of
service desired : (viz., that one copy of the documents to be
served should be left with the intended recipient; that a
certificate of service by the process-server should be
written on the copy of the documents to be served; that the
recipient should be asked to sign a copy of the document
served, etc., as the case may be). (k) Address-The letter to
a Foreign Court, where the proper description of the
Foreign Judicial Authority in question is not known,
should be addressed to the competent Judicial Authority in
….. (Name of the country concerned).”

5. It is of utmost importance to mention here that the said

Applicant/Defendant in the captioned Suit has had been
residing in Saudi Arabia since few years and rarely visits
India. The Applicant started living in Saudi Arabia even
before the filing of the captioned Suit.

6. The Applicant is employed in Continental Resources

Company Limited situated in Kingdom of Saudi Arabia
and currently residing at Al Dawasir Dammam Saudi
Arabia since 2015-16.

The copy of the aforesaid travel history and passport of the

Applicant are annexed herein and marked as
ANNEXURE-A/2

7. On 21.07.2018, this Hon’ble Court observed that the

Summons not been served in the captioned matter and
were received back unserved as the Applicant does not
reside at the address provided by the Plaintiff.
 The copy of the aforesaid Order dated 21.07.2018 is
annexed herein and marked as ANNEXURE-A/3.

8. On 19.09.2018, the Hon’ble Court again issued Summons

for appearance and were yet not duly served to the
Applicant/Defendant and were received back unserved.

The copy of the order dated 19.09.2018 is annexed herein

and marked as ANNEXURE-A/4.

9. In March 2024, The Applicant’s wife, Mrs. Anupama

Gupta, got information about the captioned Suit when the
Police Officials was enquiring about the Applicant nearby
the residence of Mrs. Anupama Gupta. The Applicant on
receiving the said information from his wife came into the
acquaintance of the legal proceedings of the concerned
suit.

10.The residential address of the Applicant is U/G/H Flat

No.1, Balaji Apartment, Bhagwati Garden, Extension
Block-A, Uttam Nagar, Delhi and the Applicant resides at
the Upper ground floor of the said premises. The
Applicant’s wife and daughter are the only family
members who reside at the said Address of the
Applicant/Defendant.

11.The Applicant and his wife have mutually agreed to live

separately. The Applicant is only fulfilling his
responsibility of maintaining his wife and daughter.

12.The Respondent/Plaintiff, being a close friend of the

Applicant was aware of the relationship and living
condition of the Applicant with his wife. The Respondent
exploited the complicated relationship existing between
the Applicant and Applicant’s wife. Consequently, the
Respondent procured the decree through concealment of
relevant facts for the purpose of obtaining ex-parte decree.

13.Furthermore, it is pertinent to mention that the

Respondent/Plaintiff was aware of the fact prior to the
 institution of the suit that the Applicant has been residing
in Saudi Arabia for some time. The Respondent concealed
the said fact that the Respondent even misbehaved with the
separated wife and children of the Applicant to illegally
pressurize the wife of the Applicant for procurement of the
aforementioned amount.

14.The Summons was never duly served to the Applicant and

in the absentia of the Applicant/Defendant, the Hon’ble
court passed an ex-parte decree against the Applicant in the
concerned suit. The Applicant have sufficient reason for
non-participation in the proceedings as the Summons were
never duly served to the Applicant’s Address.

The copy of the Order dated 22.09.2023 wherein the

Summons were received back unserved with the report that
the Applicant does not reside at the given address is
annexed herein and marked as ANNEXURE-A/5.

15.The Applicant has sufficient reason for the non-

participation in the proceedings as the Applicant has
neither intentionally nor deliberately avoided the
directions/order of the Court. The Applicant took
appropriate action provided to him by the law as soon as
he came into the acquaintance of the legal proceedings in
the captioned Suit.

16.That irreparable losses and damage would be caused to the

Applicant/Defendant if the present application is not
accepted and the ex-parte judgment and decree is not set
aside.

17.The constitutional morality in line with Article 21 of the

Constitution of India, demands that every citizen of India
have the right to fair trial. The said Fundamental Right
shall be curtailed if the present Application is not allowed.
18. The principles of natural justice, equity and good
conscience demands that the Applicant must not be held
guilty or at default without the opportunity of being heard.