Delhi High Court – Orders
Tejpal Gaur Proprietor Of M/S Kalyani … vs 1. Sumit Gaur S/O Lt. Surindra 2. Sandeep … on 4 May, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 454/2026, CM APPL. 29601-29603/2026
TEJPAL GAUR
Proprietor of M/s Kalyani Mineral & Tradesrs
S/o Sh. Rama Nand
R/o House No. 1550, Village & Post Office
Mahilpalpur, Uprahi Mohalla, New Delhi-110037 .....Appellant
Through: Mr. Ankur Bansal, Mr. Vivek Singh
Bishnoi and Mr. Sadre Alam,
Advocates
versus
1. SUMIT GAUR
S/o Lt. Surindra
2. SANDEEP GAUR
S/o Lt. Surindra
3. HEMLATA SHARMA
W/o Lt. Surindra
4. JAGWATI
Mother of Lt. Suindra
All Residents of:
House No. 203, Village & Post Office Samalkha,
New Delhi-110037 .....Respondents
Through:
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 04.05.2026
CM APPL. 29603/2026
1. An Application under Section 5 of Limitation Act, 1963 read with
Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred to as
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‘CPC‘) has been filed on behalf of the Appellant seeking condonation of
delay of 357 days in filing the Appeal.
2. It is submitted in the Application that the Suit bearing CS No.
383/2023 titled Sumit Gaur & Ors. v. Tejpal Gaur was filed by the
Respondents, for the recovery of Rs. 20 Lakhs along with pendent lite and
future interest and cost against the Defendant / Appellant, under Order
XXXVII CPC.
3. According to the Court records, summons was served, but were
refused by the Appellant. The service was also affected through WhatsApp,
but since the Appellant failed to appear, he was proceeded ex parte and the
ex parte Decree dated 18.02.2025, was passed decreeing the Suit of the
Plaintiff / Respondent.
4. The Appellant has claimed that he was not aware of the ex parte
Decree dated 18.02.2025, when the Police came to his house in execution of
the warrants issued by the Executing Court, in Execution Petition No. 57/25
on 28.01.2026. He thereafter, appeared in the Court on 29.01.2025. The
Appellant filed his Objections in the Execution Petition, which got
dismissed.
5. The Appellant asserted that he was never served and came to know
about the ex parte Decree only on 28.01.2025. The delay of 357 days in
filing the Appeal was not intentional, but for the aforesaid reasons.
6. For the reasons stated in the Application, the delay of 357 days in
filing the Appeal is hereby condoned.
7. The Application stands disposed of.
RFA 454/2026:
8. Regular First Appeal under Section 96 read with Order XLI Rule 1
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CPC has been filed to challenge the ex-parte Judgment dated 18.02.2025
whereby the Suit of the Plaintiffs / Respondents was decreed for the
recovery of Rs. 20 Lakhs along with pendente lite interest @8% and future
interest @ 4%.
9. The facts in brief, are that on 11.11.2019, Surendra Kumar entered
into a Loan Agreement, to advance a loan of Rs. 20 Lakhs to the Appellant /
Defendant Tejpal out of which, Rs. 9.50 Lakhs were paid in cash on
11.11.2019, while Rs.10 Lakhs were paid on 14.11.2019 vide Cheque No.
191377 issued in the name of M/s Kalyani Mineral and Traders. Rs.50,000/-
was given vide Cheque No. 191378 dated 16.11.2019, in the name of
Saurabh Gour, son of the Defendant.
10. The Loan Agreement was accordingly, executed between the parties.
As per the terms, the loan was to be repaid within 11 months or on demand,
as and when raised by Surendra Kumar. The Appellant / Defendant also
gave two undated blank cheques for realization of the loan amount.
11. However, Surendra Kumar, unfortunately, expired on 09.04.2020. He
is survived by his two sons, Sumit Gaur and Sandeep Gaur, wife Hemlata
Sharma and mother Jagwati. The Suit has been instituted by all the legal
heirs of Surendra Kumar through a Special Power of Attorney, in favour of
Respondent No.1 / Plaintiff No. 1 Sh. Sumit Gaur for recovery of the loan
amount.
12. The summons was duly served upon the Appellant through
WhatsApp, on 09.11.2023. The summons sent through speed post, were
returned with the report of ‘refusal’. The Appellant / Defendant’s refusal,
was deemed to be served by the learned Predecessor on 11.12.2023. Since
the Appellant / Defendant did not enter his appearance, he was proceeded ex
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parte vide Order dated 16.03.2024.
13. The Plaintiff No. 1 Sumit Gaur appeared as PW1 in support of his
case. He proved the ‘Surviving Member Certificate Mark’ PW-1/B, the
‘General Loan Agreement’ Ex.PW-1/D dated 11.11.2019, the ‘Passbook of
Late Surendra Kumar’ Ex.PW1/E from 02.10.2019 to 11.02.2020, the two
cheques for Rs.10 Lakhs each as PW-1/F and PW-1/FA, the screenshots of
conversation between the Plaintiff No. 1 and Defendant as Ex.PW- 1/G.
14. The learned District Judge considered the unrebutted and
unchallenged testimony of PW1, and concluded that the Plaintiffs had
successfully proved the loan of Rs. 20 lakhs given to the Defendant, which
had not been refund. Consequently, the Suit of the Plaintiff was decreed in
the sum of Rs. 20 Lakhs along with pendent lite and future interest @ 8%
p.a. from the date of institution till the date of payment.
15. Aggrieved by the said Judgment, the Appellant / Defendant has
preferred the present Appeal.
16. The grounds of challenge are that the decree is a nullity in view of
Section 214(a) of the Indian Succession Act, 1925. It specifically provides
that no Suit can be decreed against a debtor, in the absence of a Succession
Certificate. No Succession Certificate has been issued in favour of the
Respondents / Plaintiffs in respect of alleged debt of late Sh. Surendra
Kumar and thus, the Suit could not have been decreed in favour of the
Respondents.
17. Reliance is placed on Venkatalakshmi v. The Central Bank, (1956) 2
MAD.L.J. 114, wherein it was held that the object of taking a Succession
Certificate under Section 214 of the Indian Succession Act is to give security
to the debtors paying the debt due to the deceased and thus, facilitate the
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collection of debt on succession.
18. The Plaintiffs have filed their Suit on the basis of Surviving Member
Certificate issued by Revenue Department, Govt. of Delhi, Vasant Vihar,
New Delhi, but this Certificate is a self-declaration document and has no
legal authenticity. The law of succession mandates obtaining of Succession
Certificate, in respect of debt of the deceased.
19. The other ground of challenge is that the Appellant was never served
with the summons and had no knowledge of the Suit for which reason, none
had appeared before the learned Trial Court. The Service Report is totally
concocted as it bears no report or name of the person, who had allegedly
refused to accept the summons. Furthermore, when there was a Report of
refusal of the summons, the Court was necessarily required to examine the
Postal Peon, to ascertain as to who had refused to accept the summons
before relying on the Report. Reliance is placed on G. Artherton and
Company (P) Ltd. v. Shri Abhijit Bose and Anr. 1995 (2) CLJ 342.
20. It is further submitted that the alleged WhatsApp service on the
Defendant, as relied upon by the learned Trial Court, is non-est as it is not
clear whether the Appellant actually received the same or not. Further, no
Affidavit under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 was
filed in support of the electronic evidence. It is, therefore, submitted that the
ex parte Decree dated 16.03.2024 against the Appellant on the basis of
Service Report was erroneous as there was no proof of service of the
summons on the Appellant. The Appellant came to know about the decree
only from the execution proceedings.
21. The Appellant has further asserted that the Suit is based on forged and
fabricated Loan Agreement dated 11.11.2019, allegedly executed between
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Sh. Surendra Kumar and Appellant Tejpal Gaur. It is claimed that bare
perusal of the document, reflect that it is a forged and fabricated document
and does not bear the signatures of the Appellant. Further, vital information
has been hand-written which is not even countersigned by the parties to the
alleged Loan Agreement.
22. Furthermore, there is an entry of cash in the sum of Rs.9.50 Lakhs,
but no source of money proved or ITR records of the Plaintiff have been
filed to substantiate the alleged cash transaction. It is denied that Rs. 9.50
Lakhs, had ever been received in cash ever by the Appellant, and he is not
aware of any such transaction. The falsity of the claim of the Respondents is
established from the fact that the Legal Representatives for the first time,
allegedly demanded money vide Legal Notice dated 26.09.2023, whereas
the transaction was of November, 2019, which clearly shows the mala fide
intent of the response.
23. It is further asserted that there was no amount ever due from the
Respondents. It is prayed that the impugned Judgment is, therefore, liable
to be set aside.
Submissions heard and record perused.
24. The Suit for Recovery of Rs. 20 Lakhs along with interest has been
decreed vide Judgment and Decree dated 18.02.2025. The first ground of
challenge is that the Suit was barred under Section 214 of the Indian
Succession Act, 1925 (hereinafter referred to as ‘the Act’). It is argued that
the Section 214 of the Act specifically bars any Suit being decreed against a
debtor of a deceased person in the absence of a succession certificate issued
under Section 214 for which reliance is placed on Venkatalakshmi (supra).
25. In Venkatalakshmi (supra), the object of taking a Succession
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Certificate was explained to be to give security to the debtors paying the
debt due to the deceased and thus, facilitate the collection of debts on
succession. The purpose is not to enable parties to have an opportunity of
litigating contested question of title to the property. Once the Defendant is
satisfied that the that the Applicant is entitled to collect the debt, it should
not prescribe onerous conditions, which are in no way necessary for its
safety and it must be the endeavour of the Bank to promote deposits and not
make them unpopular by insisting upon totally unnecessary safeguards.
26. It may thus, be observed that the object of Section 214 of the Act is to
give protection to the debtor and to ensure that the creditors are correctly
identified and the debtor does not suffer by any disadvantage, in case some
other legal heirs come forth, to make a claim for the amount the second
time.
27. In the present case, the Plaintiffs have categorically deposed that there
were four legal heirs of late Surinder, who are all a party to the Suit. They
have given a Power of Attorney in favour of Plaintiff No. 1 Sumit Gaur. Not
only this, they have also obtained a Succession Survival Member Certificate
dated 11.11.2022 Mark PW1/B. The decree passed in favour of the
Respondents, effectively binds the entire cohort of legal heirs, thereby
insulating the Appellant from the risk of any future litigation or claims. Any
discharge of liability towards Surender Kumar, is towards all the legal heirs
who are a party to the present Suit. Therefore, this objection is not tenable.
28. The second ground taken is that the Appellant was never served with
the summons of the Suit. In this regard, it may be noted that the Appellant
has not filed any Application under Order IX Rule 13 CPC, challenging as
the non-service or of setting aside decree, on this ground.
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29. It is only in this Appeal that the Appellant has claimed that he had not
been duly served. It has been clearly noted that the summons was received
with the endorsement ‘refused’. Insofar as the contention that the name of
the person who refused is not mentioned on the summons, is a frivolous
objection. Considering that when nothing more is written, it is clearly
indicated that the summons has been refused by the Appellant / Addressee
himself. The Appellant’s contention that he was never served with the
summons, is not borne out from the record and is not tenable.
30. The third ground raised by the Appellant is that there was no loan of
Rs. 20 Lakhs, as alleged by the Plaintiff, ever taken by him. This contention,
however, is directly contradicted by the Loan Agreement dated 11.11.2019
Ex.PW1/D which had been executed by the parties. Though, the Appellant
has claimed that it is a forged and fabricated document, but mere allegation
without anything further, and that too without adducing any evidence,
cannot be accepted, as there is a written Loan Agreement.
31. The contention that the loan was not supported by any document, is
patently incorrect. It cannot be overlooked that while Rs. 9.5 Lakhs had
been given in cash, Rs.10.50 Lakhs had been handed over through the
cheques.
32. Once there was a written Loan Agreement, which is supported by two
cheques undeniably having signatures of the Defendant, it cannot now be
asserted that there was no loan transaction or that the money had not been
received by him. The amount of Rs. 9.50 Lakhs may have been given in
cash, but this has been duly documented in the Loan Agreement Ex. PW1/D.
33. The Defendant has chosen not to contest or to produce any evidence
to the contrary. With the evidence on record and the testimony of the
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Plaintiff being unrebutted, it cannot be said that the Plaintiff failed to prove
having given the loan of Rs.20 Lakhs, to the Appellant.
34. In the end, it has been contended that it is difficult to comprehend
that the Plaintiff Surender Singh did not demand back his loan which he had
given in 2019, till the service of Legal Notice dated 26.09.2023.
35. It is pertinent to note that Surender Kumar had died on 09.04.2020,
i.e., while the return of loan was due only in October, 2020. The occasion
for demanding back the loan had not arisen and therefore, to claim that
there was no demand of loan reflecting any suspicious circumstances, is not
acceptable.
36. It can also not be overlooked that there was Covid pandemic since
March, 2020 till February, 2022. In such onerous and challenging
circumstances where the people were struggling for their lives, they could
not have been expected to be running after the debtor for their money. Even
if it is accepted that the legal heirs had not approached the Defendant for
recovery of the loan amount, but this is understandable in the given
circumstances. It cannot be said that demand made through Legal Notice
dated 26.09.2023 for return of Loan was suspicious of the loan transaction,
is not tenable.
37. Furthermore, PW1 has proved two cheque bearing No. 164273 and
cheque bearing No. 164274, both in the sum of Rs. 10 Lakhs Ex. PW1/F and
PW1/FA having signatures of the Appellant, that had been issued by him, in
favour of Late Sh. Surender Kumar. These cheques further corroborate that
the loan of Rs. 20 Lakhs had been taken by the Appellant, who in order to
secure the return of the money, had given these two cheques.
38. The aforesaid discussion reflects that the learned District Judge has
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rightly decreed the Suit of the Plaintiffs.
39. There is no merit in the Appeal, which is hereby, dismissed. Pending
Applications, if any, also stands disposed of.
NEENA BANSAL KRISHNA, J.
MAY 04, 2026
N
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