Burden Shifts To Respondent Once Service Of Summons Is Rebutted: Delhi HC

The Delhi High Court has held that an endorsement of 'refusal' on a tracking report creates only a rebuttable presumption of service, emphasizing that once a defendant denies receipt on oath, the burden shifts to the plaintiff to prove actual service with cogent evidence.

A division bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar set aside an ex-parte decree, observing that the trial court's decision to condone delay based on the appellant's lack of knowledge while simultaneously holding that service was valid was 'mutually destructive.'

The Requirement of Cogent Evidence to Prove Service

The Court noted that while Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872 create a presumption of service for registered post, this is not an absolute rule. The bench highlighted that if a party specifically disputes service on oath, the absence of an examination of the postal official becomes a critical deficiency in the case of the party asserting service.

The Court, in its reasoning, observed: "In the present case, the entire case of the Respondent rests upon a tracking report and a purported postal endorsement of ‘refusal’. However, the Appellant has, on oath, categorically denied having been served with summons and further asserted that the tracking report neither bears his name nor evidences actual tender of the summons to him. Such a sworn and specific denial constitutes a credible rebuttal and cannot be brushed aside lightly. Once such a denial is made, the burden shifts upon the Respondent to establish due service by leading cogent evidence demonstrating actual tender of summons to the Appellant."

Contradictory Findings On Limitation and Service

The High Court pointed out a significant logical inconsistency in the Trial Court's order. The lower court had previously condoned the delay in filing the application under Order IX Rule 13 of the Civil Procedure Code, 1908 by accepting the appellant's claim that he only acquired knowledge of the decree on April 11, 2025. The High Court reasoned that if the court accepted this date for limitation purposes, it could not then maintain that the appellant had been duly served in December 2024.

Background:

The dispute arose from a legal arrangement involving a lease of a hotel/property. The respondent had filed a commercial suit where the trial court issued summons on November 28, 2024. Based on a postal tracking report showing 'refusal', the trial court proceeded ex-parte on January 17, 2025, and subsequently passed an ex-parte judgment on March 22, 2025.

The appellant moved an application under Order IX Rule 13 of the Civil Procedure Code, 1908, asserting he only learned of the decree through a WhatsApp message from the respondent's counsel in April 2025. He argued that the postal report was vague as it did not identify the person who allegedly refused the summons. The trial court dismissed his application, leading to the current appeal under Section 13(1A) of the Commercial Courts Act, 2015.

The High Court relied on the principles laid down in Parimal v. Veena, which clarified that the burden of proof rests on the party asserting the affirmative of a fact. Since the respondent failed to examine the postal official to counter the appellant's specific denial, the High Court allowed the appeal and set aside the ex-parte decree.

Case Details:
Case No.: FAO (COMM) 28/2026 & CM APPL. 6357/2026
Case Title: MANOGYA AGARWAL v. M/S ANEJA REALTY PVT. LTD.
Appearances:
For the Petitioner(s): Mr. Devanshu Khandelwal, Adv.
For the Respondent(s): Mr. Arun Kumar, Adv.

Source: 2026 CaseBase(DEL) 300