Klg Systel Ltd. vs Fujitsu Icim Ltd.
1999 Latest Caselaw 1102 Del

JUDGMENT

Vikramajit Sen, J.

1. This is an application filed by the defendant for condensation of delay in filing its 'Leave to Defend'. The relevant facts are that summons for judgment were attempted to be served on the defendants on 5.3.1999 at its Delhi office; the service report records a refusal. The defendant in its 'Memorandum of Appearance' for service had given three addresses viz. (i) the Delhi office, (ii) Registered Office at Pune, and (iii) address of the Counsel for the defendant-Company. It appears that the Process Server went to the Delhi office and tried to serve the summons for judgment on Ms. Shakila who informed him that she only dealt with maintenance of record in the Personnel Department and was not authorised to accept summons. It is the defendant/applicant's contention as contained in para 7 of the application that the Process Server did not leave any copy of the summons for judgment with Ms. Shakila and also did not affix these documents at the said address. It is further alleged that the Process Server did not make any attempt to serve the process again even though he was specifically told that the authorised person, Mr. S.M. Khanna, would return to Delhi on 20.3.1999. Counsel for the defendant accepted the summons for judgment in Court on the next date of hearing and thereafter filed the present application. The plaintiff has not denied the averments contained in para 7 to the effect that the summons were not left with Ms. Shakila and were not affixed at the said address. The averments in this application are not admitted. But the plaintiff has merely mentioned that they are

part of the records of this Court. On this material issue, therefore, in my opinion, there is non-traverse, with the consequence that the version put forward by the defendant would have to be accepted as correct.

2. Learned Counsel for the plaintiff argued that Order xxxvII contemplates the furnishing of a Single address for subsequent service of the summons for judgment, and that inasmuch as three addresses were given in this case, the plaintiff was not obligated to serve the defendant at the three addresses. A perusal of the language of the order makes it amply clear, by the use of the singular in the noun, "that it is not open to the defendant to give more than one such address". This argument on behalf of the plaintiff is accepted. Only one address on the Memorandum of Appearance is proper. In the present case, no attempt was made to serve the defendants at the address of then Advocates; and hence this objection loses "significance for this reason.

3. Learned Counsel for the defendant, however, submits that even if this be the legal position, and only the Delhi office is taken into contemplation the service of the summons for judgment at that address is not proper and therefore not binding on the defendant. In support of the contention he relies on the judgment in Shalimar Rope Works v. Abdul Hussain, . The following observation are as follows:

"The meaning of Clause (b) has got to be understood in the background of the provisions of the Code in Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the Company, unless the contrary is shown, will be presumed to be service on the Company itself. But the first part of Clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided :

"Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

4. No doubt this case did not deal with a summary suit, but the meaning given to the word leaving' or 'left' would apply even to service contemplated under Order xxxvII. Had the Process Server followed the procedure set out in Order V, Rule 17 he ought to have left the summons at that particular address and made a report to that effect, simultaneously also affixing a copy of the summons on the outer door or some other conspicuous part of that office. It is also incumbent that the

Process Server should make every effort to serve the authorised person. In this case, since he had been informed that Mr. S.M. Khanna would return on 20.3.1999, he ought to have, attempted of the service at Delhi office immediately after that date. This has admittedly not been done. Although Order xxxvII, Rule 3 (2) is a deeming provision in regard with service, the word "left" must be given its true complexion from the general procedure envisaged in the Court. Decision of the Apex Court in the Shalimar Rope Works v. Abdul Hussain on a complete construction, categorically holds to this effect.

5. Since the Process Server had not left a copy of the summons at the Delhi address furnished by the defendant in his Memorandum of Appearance, nor had made a further attempt to serve the authorised person after his return to Delhi, nor had affixed the summons at any conspicuous part of the Delhi office, I cannot but arrive at the conclusion that the defendant was not properly served with the summons for judgment.

6. Summons for judgment were accepted in Court on 16.3.1999 and the Leave to Defend was filed on 26.3.1999, i.e. within the period stipulated under the Code of Civil Procedure. The application is, therefore, accepted by holding that the period of limitation would commence from 16.3.1999 and not from the date on which service was allegedly sought to be affected on Ms. Shakila. Accordingly, there is no delay which requires to be condoned and the application is disposed of in these terms.

22.11.1999

LA. 3402/99 in S. No. 1553/98

By a separate order passed today, LA. 4923/99 has been disposed of.

LA. 3402/99 in S. No. 1553/98

Refortify for consideration on 10.3.2000.