JUDGMENT
Sanjiv Khanna, J.
1. The present Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) is directed against the Order dated 26th July, 2005 dismissing the application of the petitioner under Order xxxvII Rule 4 read with Section 151 of the Code.
2. The respondent herein has filed a suit for recovery of Rs. 11,10,000/- under the summary procedure under Order xxxvII of the Code.
3. The petitioner was duly served and had filed his appearance on 17th March, 2004 At the time of filing his appearance, the petitioner also filed his address for service of summons for judgment.
4. The respondent thereafter filed an application for issue of summons for judgment and on several occasions, notices were issued to the petitioner at the address given by him, namely, B-4/3, Vasant Vihar, New Delhi. It is clear from the order passed by the learned Trial Court that notices were issued for service of summons of judgment for dates fixed on 25th April, 2004, 8th July, 2004, 11th August, 2004 and 14th September, 2004 On these four occasions, summons for judgment were received back unserved with the report that the petitioner was out of India as was stated by one or the other family member of the petitioner. The summons for judgment sent by registered posts were also received back as unclaimed.
5. In these circumstances, the learned Trial Court vide order dated 27th September, 2004 directed that the summons for judgment should be served by affixation for the next date of hearing, i.e. 12th October, 2004 The summons for judgment in terms of the said order was served by affixation at the address given by the petitioner. On the next date of hearing, i.e. 12th October, 2004 appearance was put in on behalf of the petitioner and it was stated that the petitioner was out of India and in these circumstances leave to defend application could not be filed. Learned Trial Court after considering the submissions made, vide Order dated 12th October, 2004 decreed the suit for Rs. 11,10,000/- with interest @ 6% per annum from the date of filing of the suit till decree.
6. Thereafter, the petitioner filed an application under Order xxxvII Rule 4 read with Section 151 of the Code for setting aside of the decree dated 12th October, 2004 This application was filed on or about 9th November, 2004 The application was considered and dismissed by the learned Trial Court by a detailed speaking impugned order dated 26th July, 2005.
7. I have heard learned Counsel for the petitioner.
8. The respondent herein had filed a suit for recovery of Rs. 11,10,000/- under the summary procedure on 23rd November, 2001. It appears that after considerable difficulty, the petitioner was served and he filed his appearance on 17th March, 2004 Thereafter, four attempts were made to serve summons for judgment at the address given by the petitioner himself for service of the said summons but he could not be served. Notices sent by registered post were also received back unclaimed. Ultimately by Order dated 14th September, 2004, the petitioner was directed to be served by affixation. A bailiff in terms of the order passed by the Trial Court affixed the summons for judgment on 27th September, 2004 The petitioner was aware of affixation and therefore entered appearance through his counsel on the next date of hearing i.e. 12th October, 2004 but no application for leave to defend was filed. In these circumstances, learned Trial Court decreed the suit on 12th October, 2004 Thereafter, an application under Order xxxvII Rule 4 of the Code was filed for setting aside of the ex-parte decree.
9. The Suit under Order xxxvII was based upon a promissory-note. The promissory note records that the respondent had advanced and given loan of Rs. 7,50,000/- to the petitioner. The petitioner had also executed a receipt duly acknowledging the said loan. This promissory note/receipt is dated 24th November, 1998. This not only bears the signatures of the petitioner but also has his residential address.
10. The petitioner before me had admitted that he was facing financial crunch/hardship. The petitioner has/had not denied his signatures on the said promissory note and the receipt.
11. In addition to the two documents, the respondent had also relied upon a cheque for Rs. 9,30,000/- drawn on State Bank of India, South Extension, New Delhi. It was admitted by the petitioner that he had an account in the said Bank but he has/had denied his signatures on the said cheque.
12. When the petition came up for hearing, the learned Counsel for the petitioner referred to paragraph 9 of his application under Order xxxvII Rule 4, which reads as under:-
It is submitted that the Defendant and Plaintiff were friends since school time as they studied together in Ramjas Public School, R.K. Puram, and New Delhi. The defendant on his own started export business, however, unfortunately in the year 1997-98 the Defendant suffered huge losses, because of which he developed estranged relationship with his family members and was going through a very depressing and low phase in his life. It was during this time that the Defendant sought help of the Plaintiff who was running a finance company in the name and style of M/s . Satkar finance Company Pvt. Ltd. who gave him one room in his house to stay. The Defendant also started using the office of the Plaintiff for his business. The Defendant at the office of the Plaintiff kept all-important documents including chequebooks. As the Defendant was going through a very bad phase emotionally and financially and had no one to help him except the Plaintiff, who at that time was a very dear friend to the Defendant, therefore, during said period the Defendant took loan of Rs. 50,000/- twice from the Plaintiff.
13. The averments made in paragraph 9 if analysed show that the facts stated therein are vague and devoid of relevant particulars and details. The petitioner admits that in 1997-98 he had suffered huge losses and had sought help from the respondent. He also admits that he had taken loan from the respondent but it was claimed that loan of Rs. 1 lakh only was taken in form of Rs. 50,000/- on two occasions. The petitioner had further admitted that the respondent had a financial company. An allegation was made that the respondent may have misused the cheque book that had been kept by him in one room in the residence of the respondent. The photocopy of the cheque placed on record shows that it bears the rubber stamp of G.P. International and also purported signatures of the petitioner. The cheque when presented was returned back with the report Account closed. The petitioner was required to file an affidavit to explain that the cheque No. 962759 belonged to a cheque-book issued by the State Bank of India, South Extension Branch, New Delhi in the year 1997-98. Inspite of the opportunity given for the said purpose, no affidavit was filed. It has also not been explained what steps were taken by the petitioner after he found that a cheque was missing from the cheque book. It is therefore apparent that the statements made in paragraph 9 of the application are sham, false and incorrect.
14. Keeping in view the above facts, I do not think that the petitioner has been able to show on merits that he was entitled to grant of leave to defend. It is settled that an application under Order xxxvII Rule 4 of the code should be allowed and a decree should be set aside under the said provision only if special circumstances are shown and on such terms and conditions as the Court deems reasonable.
15. In view of the above, I do not find any merit in the present Revision Petition and the same is accordingly dismissed. No costs.