M/S. Indo Den Energy Ltd. vs The Saraswati Ind. Syndicate Ltd.
1999 Latest Caselaw 1027 Del

ORDER

Dr. M.K. Sharma, J.

1. The respondent filed a suit against the petitioner seeking for recovery of Rs.37,000/- along with pendente lite and future interest under order 37 CPC. The trial court directed for issue of summons in statutory forms to the petitioner. After holding that summons had been duly served on the petitioner and since there was no appearance of the petitioner the trial court proceeded to pass an ex parte judgment and decree dated 22.8.1994. On 26.9.95, the petitioner filed an application under order 37 Rule 4 CPC seeking for setting aside the ex parte judgment and decree and the said application was dismissed by the Civil Judge on 15.3.97 holding that there was no merit in the said application. Being aggrieved by the aforesaid order, the present revision petition is preferred which I propose to dispose of by this order after hearing the counsel appearing for the parties.

2. Mr.Aneja appearing for the petitioner urged that summons in the suit were not duly served on the petitioner in accordance with law and, therefore, the decree which was passed was illegal and without jurisdiction. He submitted that the civil Judge acted illegally in not setting aside the said judgment and decree on the application filed by the petitioner under order 37 Rule 4 CPC. It was submitted by him that the summons were required to be served on the petitioner which was a company, in accordance with the mode of service of summons as prescribed under the code of civil procedure and the same having not been served in accordance with the said mode, it was submitted that no decree could have been passed by the civil Judge against the petitioner. In support of his contention, the learned counsel relied upon the decision of M/s. Shalimar Rope Works Ltd. Vs. M/s. Abdul Hussain H.M. Hasan Bhai Rassiwala & Others .

3. Mr.Kaul appearing for the respondent, however, submitted that the summons have been duly served on the petitioner as would be apparent from the records of the case particularly when the endorsements of the process server are looked into. He submitted that summons were duly served on the petitioner on 18.10.93 as also on 11.8.94. He also submitted that even otherwise the application filed by the petitioner under order 37 Rule 4 CPC praying for setting aside the ex parte order was beyond the period of limitation and admittedly no application under section 5 of the Limitation Act was filed and, therefore, the said application was rightly rejected by the trial court.

4. In the light of the aforesaid submission of the counsel for the parties, I perused the records and proceed to dispose of the present revision petition.

5. The suit was instituted by plaintiff under order 37 CPC. The trial court ordered for issuance of summons in statutory forms. Pursuant to the aforesaid order summons were issued to the petitioner on 18.10.93. Summons were taken to the premises of the petitioner when the same were received by the receipt clerk of the petitioner by putting his signature thereon. Thus, effecting service on the receipt clerk of the petitioner is duly proved by the endorsement given by the process server in his report, which indicates that summons were taken to the petitioner and the same were handed over to the receipt clerk who accepted the same after putting his signature on the summons. On 11.8.1984 also, when summons were taken to the address of the petitioner, one Sh.Mahesh Belwal, who is the Chairman of the defendant company, refused to accept the said summons. There are other documents on record to indicate that the Regd. A.D. cover containing summons sent to the defendant was received back unserved with the report that the addressee refused to accept the same on 29.7.94.

6. The plea taken by the petitioner that summons were not duly served on the petitioner in accordance with the provisions of code of civil procedure is to be tested in the backdrop of the aforesaid evidence on record. In M/s.Shalimar R case (Supra) it was held by the Supreme Court that if the serving peon or bailiff is not able to serve the summons on the Secretary or any other principal officer of the Corporation because either he refuses of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence, then he can leave the summons at the registered office of the company and make a report to that effect.

From the records available it is apparent that summons required to be served on the defendant would be deemed to have been served on such defendant if the same is served on the Secretary or any Director or any other Principal officer of the Corporation or the same is left at the address given by him for such service. It is true that the expression "leaving the summons at the registered office" under clause (b) of order 29 Rule 2 CPC does not mean that the summons can be left anywhere uncared for in the registered office of the company. But when such summons are left with the receipt clerk of the company, who received the same after giving his signature thereon, in my considered opinion, the same would be deemed to be valid and legal service on the defendant. The summons were duly served on the defendant in accordance with the provisions prescribed for the purpose. It has also come on evidence that the chairman of the petitioner company refused to accept the summons sought to be served on him. The aforesaid report of the process server is also on record. Thus, in my considered opinion, summons in the statutory forms were duly served on the petitioner and, therefore, the aforesaid plea of the petitioner is found to be without any merit.

7. Even otherwise, the present revision petition is directed against the order passed by the civil judge on the application filed by the petitioner under order 37 Rule 4 CPC and such an application is required to be filed within the period of limitation. The aforesaid judgment and decree was passed on 22.8.94 and the said application under order 37 Rule 4 CPC was filed on 17.10.1995. Thus, the application was barred by limitation. Admittedly, no application under section 5 of the Limitation Act was filed by the petitioner seeking for condensation of delay in filing the said application. I have looked into the application filed by the petitioner under order 37 Rule 4 CPC. Even after going through the averments made therein, I do not find any reason, not to speak of plausible reason therein, mentioned by the petitioner making out a case of sufficient cause for condensation of delay. No cause is shown at all even in the said application filed under order 37 Rule 4 CPC explaining the delay in filing the application.

8. The trial court was, therefore, also justified in holding that the application under order 37 Rule 4 CPC was barred by limitation and that no sufficient cause was made out and that no ground was made out for setting aside the ex parte judgment and decree. I find no infirmity in the aforesaid findings as well. The petition, therefore, has no merit and is dismissed accordingly.