Naresh Kumar Gupta vs Nav Bharat Times Co-Operative ...
1993 Latest Caselaw 584 Del

JUDGMENT

Mohd. Shamim, J.

(1) Learned counsel for the petitioner has raised a preliminary objection with regard to the maintainability of the present objections preferred by the respondent against the award dated May 23, 1990 rendered by the arbitrator. According to the learned counsel, the impugned objections preferred by the respondent against the award alluded to above, are hopelessly barred by time. Thus, they cannot be looked into and are liable to be flung to the winds on this short ground alone The learned counsel in support of his argument has led me through the order dated January 20,1991 passed by the Deputy Registrar of this Court. According to the learned counsel as per the report of the process server the notice with regard to the filing of the award was accepted for and on behalf of the respondent on November 19,1990. Thus, the argument further proceeds, period of limitation for filing objections would start running from the said date and in case it is so computed the objections could have been filed at the most by December 19, 1990 i.e. within thirty days from the service of the notice. However, as is manifest from the record the objections were filed on February 19,1991. Thus, the said objections are hopelessly barred by time and cannot be entertained and art thus liable to be dismissed on this short ground alone.

(2) Learned Senior, Counsel. Mr. R.P. Bansal, on the other hand, has contended that the respondent were not served with the notice of the award at any point of time. In fact, counsel for the respondent accepted the notice of the filing of the award as is abundantly clear from the order dated January 21,1991 passed by the Deputy Registrar. Hence, according to him, the period of limitation would be reckoned from the said date and if it is so computed, in that eventuality the objections are within time. According to the learned counsel, the respondent are registered society. They are a corporation and thus an artificial. person. Hence, the mode of service on a society is to be governed by Order 29 Rule 2(a) of the Code of Civil Procedure. Judged by that standard the respondent could have been served only when the notice was served on the Secretary or the Director or any other Principal Officer of the respondent corporation. Admittedly, it is not the case. Hence, the respondent could not be said to have been served in the eye of law.

(3) I have heard the learned counsel for both the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thought thereo. Since we are concerned with the construction of Order 29 Rule 2 which deals with the service of notices on the corporation, the provisions of the said Rule an be adverted to with profit. It reads as under:- "2.Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served- (a) on the secretary or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office then at the place where the corporation carries on business."

(4) It is fully manifest from above that the mode of service is to be governed incase of corporation by the provisions of Order 29 Rule 2 (a). I need not dilate on the provisions of Order 29 Rule 2('b) inasmuch as the said point is not involved herein. The case of the petitioner is that the notice was received by the clerk of the society. Learned counsel, Mr. Mittal, in support of his contention has led me through the report of the process server. I have very carefully examined the said report which is in Urdu. It shows that the notice in the instant case was delivered on November 19, 1990 to the clerk concerned. On the front of the notice there are initials in token thereof. However, the said initials are not decipherable. The said fact also finds a mention in the order of the Deputy Registrar dated January 21. 1991. Assuming argue do even if we accept the report of the process server to be correct. even in that eventuality it cannot be said that the notice was served in accordance with the provisions of Order 29 Rule 2(a) inasmuch as the same was neither delivered to the secretary nor to the director nor to any principal officer of the corporation. Thus, it cannot be said to be a service within the domain of Order 29 Rule 2(a). The secretary of the respondent Mr. N.P Sinha has filed an affidavit wherein he has categorically stated that the respondent did not have any notice or knowledge of the filing of the award prior to January 21,1991. The petitioner in their counter affidavit was not in a position to state as to whom the said notice was delivered. Thus. I find that there was no service as envisaged by Order 29 Rule 2(a) on the respondent. I am supported in my above view by the observations of a Single Judge of the Bombay High Court as (Ashok kumar Shantilal Shah and another v. Suite Bank of India). It was observed therein... "Rule 2(a) of Order Xxix prescribes service of summons "on the secretary, or on any director, or other principal officer of the corporation." By the very nature of its corporate personality, a corporation cannot receive the process except through its officers..'... In the case of a Corporation which is a legal artificial person as distinguished from a natural person. its officers designated in Rule 2(a) of Order Xxix of the Code represent the "person" of the Corporation for the purpose of receiving summons."

(5) The matter in hand also came up for discussion before their Lordships of the Supreme Court as (M/s Shalimar Rope Works Ltd. v. Abdul Hussain H.M. Hassan Bhai Rassi wala and others) According to the facts of the said case the summonses were served on one Navlakha on March 17,1975 who was merely an Office Assistant in the Sales Department of the Company. In the above circumstances, it was held by their Lordships that it was not a sufficient service. I am tempted here to cite a few lines from the said judgment".. In the instant case summons was served on the employee sitting in the registered office of the company. The said employee was a mere office Assistant in the Sales Department of the company and was not an officer duly authorised to accept summons on behalf of the company. It was the case of the plaintiff that the service of the summons was effected in accordance with the first part of Clause (b) of Rs. 2 of 0.29. Nowhere a stand was taken that the summons was duly served on the company because it was "left at the registered office of the company". Held that there was no valid service of summons on the company. The judgment of the trial court setting aside the ex parte decree under 0.9 R. 13 was correct. No error of jurisdiction was committed by it. The High Court went wrong in interfering with it."

(6) Learned counsel for the petitioner has contended that one Anuj Sharma on behalf of the petitioner had telephoned in the first week of December, 1990 and requested him to come to his office for talks for an amicable settlement in the matter. He further stated that the society had received the notice of the filing of the award from the High Court of Delhi (vide para 3 of the counter affidavit). The learned counsel on the basis of the said averment wants this Court to conclude there from that the respondent were aware of filing of the award prior to December 1990, hence the period of limitation be reckoned from the said date. I am sorry, I am unable to agree with the contention of the learned counsel for the petitioner. There is nothing on record to substantiate the said assertion. Hence, the said plea cannot come to the rescue of the petitioner.

(7) In view of the discussion above, I am of the view that the objections are not barred by time. Issue No. 1 is decided accordingly in favor of the respondent.

(8) The respondent to file evidence by way of affidavits in support of their objections within six weeks. Reply thereto be filed by the petitioner within six weeks thereafter. Put up on March, 1994 for final hearing and disposal.