Rajesh Bansal vs Ansal Housing Construction Ltd.
2002 Latest Caselaw 113 Del

JUDGMENT

O.P. Dwivedi, J.

1. The plaintiff, above named, filed a suit for recovery of Rs. 20,90,000/- Along with interest pendentelite and future thereon at the rate of 24% per annum against the defendant. It is alleged that defendant a well known construction company, published brochure in October, 1996 showing the lay out of "Shopping-cum-office complex" by name "TRADE SQUARE:. Plaintiff accordingly applied for a officer-cum-shop space in the proposed complex. During the period from November, 96 to January, 2000 plaintiff deposited a sum of Rs. 10,70,168/- with defendant company although he was required to deposit only a sum of Rs. 9,47,340/-. In November, 2000 plaintiff visited the site where the proposed complex was to come up and noticed that after competing one-end-corner of the complex, construction activities come to a stand still. Then in December, 2000 plaintiff sent a notice of demand asking refund of amounts deposited by him with interest. Under the terms and conditions, plaintiff is entitled to interest at the rate of 24% per annum. Thus the total amount recoverable from the defendant company comes to Rs. 20,90,000/- till the date of filing of he suit. The suit has been filed under the provisions of Order 37 CPC as the plaintiff seeks to recover liquidated demand in money payable by defendant with interest, asking on a written agreement.

2. Initially summons for appearance were issued against the defendant in the prescribed from under Order 37 Rule 2(2) CPC and defendant put in appearance within time prescribed. Thereafter, the plaintiff filed an application being IA No. 418/2001 under Order 37 Rule 3(4) CPC for summons for judgment and vide order dated 23rd January, 2001 this Court ordered issuance of summons for judgment in the prescribed from returnable on 23rd March, 2001. It appears from the record that plaintiff first obtained "dusty" summons for judgment and got it served on defendant's address on 29th January, 2001. Thereafter, summons for judgment were also sent by ordinary process and the same were served on 28th February, 2001. Defendant has now filed an application being IA No. 2857/2001 under Section 151 CPC challenging the validity of service of summons for judgment. It is alleged that on 28th February, 2001 defendant company received summons from Process Server in the office of the defendant company by the Clerk. As per the notice, defendant company was directed to appear on 23rd March, 2001. It is submitted that in the evening of 20th March, 2001 the defendant forwarded the said summons Along with papers to Shri Sanjay Bajaj, Advocate. After examining the papers, Shri Sanjay Bajaj, Advocate informed the defendant company that the said process was actually summons for judgment as prescribed under Order 37 CPC but the same was not accompanied by the application for issuance of summons for judgment and the affidavit verifying the cause of action, the amount claimed which are mandatory under the provisions of Order 37 Rule 3(4) CPC. It is thus contended that service of summons for judgment on 28th February, 2001 on defendant company is in violation of provisions of Order 37 Rule 3(4) CPC, therefore, it cannot be said to be valid service of summons for judgment on the defendant. Plaintiff did not file reply to the application but learned counsel for the plaintiff made submissions opposing the application.

3. The question as to whether summons for judgment which was served on defendant company on 28th February, 2001 was accompanied by affidavit verifying the cause of action, the amount claimed and stating that in plaintiff's belief, there is no defense to the suit, is purely question of fact. In the present application which is supported by affidavit of General Manager (Legal & Land Purchase) of defendant company, it has been categorically stated that summons of judgment which was served on 28th February, 2001 was not accompanied by any affidavit verifying the cause of action, the amount claimed and other requisite averments. In absence of any reply, counter-affidavit from the plaintiff's side, the averments made in the defendant's application under consideration in this regard must be deemed to have been admitted as they have gone unrebutted and unchallenged. Further from the report of Process Server appearing on the back of copy of summons it does not appear that copy of summons was accompanied any copy of affidavit. All that the report of Process Server says is that summons and copy of plaint were handed over to the concerned Clerk. It does not indicate that copy of affidavit stating the cause of action, the amount claimed and averments that in plaintiff's belief, there is no defense in the suit was also given along with the summons. As already stated, the defendant company's categorical deposition in the affidavit of its General Manager to the effect that summons were not accompanied by any affidavit has not been specifically controverter by plaintiff by filing any reply or counter-affidavit. Under the circumstances, there is no escape for conclusion that summons for judgment were not accompanied by affidavit verifying the cause of action, amount claimed and statement that in plaintiff's belief there is no defense to the suit. Thus the provisions of Order 37 Rule 3(4) CPC which are mandatory in nature have not been complied with. It must, therefore, be held that summons for judgment have not been properly served on defendant company in accordance with provision of Order 37 Rule 3(4). CPC.

4. Learned counsel for the plaintiff, however contended that copies of requisite papers including affidavit as required under Order 37 Rule 3(4) CPC had been duly submitted by plaintiff Along with other copies and all such copies were handed over to learned counsel for the defendant on 11th January, 2001 under signature of learned counsel for the defendant. Learned counsel of the plaintiff referred to index dated 11th January, 2001 filed by plaintiff containing details of copies of papers handed over to defendant's counsel on 11th January, 2001 under signatures. It is true that affidavit verifying the cause of action, amount claimed etc figures at Sl. No. 3 of Index but this cannot be said to be proper compliance of Order 37 Rule 3(4) CPC. What Order 37 Rule 3(4) CPC requires is that such affidavit has to accompany summons for judgment. In the present case order for issuance of summons for judgment was passed by Court on 23rd January, 2001. Therefore, supply of copy of affidavit to defendant's counsel even before Court passed the order for issuance of summons for judgment will not be in compliance of Order 37 Rule 3(4) CPC. Affidavit contemplated under Order 37 Rule 3(4) CPC has to accompany the summons for judgment. In the case of Nirayu Pvt. Ltd. v. Mohan Lal & Co. and Ors. 73 (1998) DLT 39 learned Single Judge of this Court held that the language of Sub-rule (4) of Order 37 Rule 3 CPC makes it clear that summons for judgment in Form No. 4-A must necessarily be accompanied by an affidavit as referred to in the said sub-section and if it is not done, service of summons for judgment will not be valid service in the eye of law. In the present case, there is no compliance of Sub-rule (4) of Order 37 Rule 3 CPC. It therefore, follows that there is no service of summons for judgment in accordance with provisions of Order 37 Rule 3(4) CPC. Therefore, the service of summons for judgment dated 28th February, 2001 without the requisite affidavit cannot be held to be valid service in the eye of law and I hold accordingly.

5. Regarding dusty service of summons for judgment on 29th January, 2001 the position is no better. There was no order from the Court to issue "dusty" summons. It is not clear on what basis the plaintiff obtained "dusty" summons. This Court has noted with disapproval the practice of getting summons under Order 37 Rule 3(4) CPC as dusty. In the case of Grafitek International v. K.K. Kaura and Ors. 88 (2000) DLT 56 learned single Judge of this Court has observed that dusty service is supplementary to the modes envisaged under the Civil Procedure Code. It can be resorted to only if specifically allowed by the Court. Where "dusty" service alone has been effected, there is always a likelihood of suspicion surrounding the situation. Therefore, only dusty service is insufficient service and cannot be acted upon. This is especially so in cases falling under the purview of Order 37 CPC.

6. As already noticed in the present case plaintiff had obtained dusty summons even without Court order. Then he filed his affidavit of service dated 15th February, 2001 to the effect that service was effected in the office of defendant company on 29th January, 2001. The said summons bears the stamp of defendant company without signature. The signature of Receiving Clerk appears separately on left hand corner. It is not clear whether the person who received the summons on 29th January, 2001 was duly authorised to receive the same. Order 29 Rule 2 CPC lays down the requisites for service of process on a Corporation which reads as under :-

Rule 2 - Service on Corporation : 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 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, or if there is no registered office then at the place where the corporation carries on business.

7. Service report does not indicate that the summons were served on Secretary or Director or any other Principal Officer of the Corporation so service is not in accordance with Order 29 Rule 2(a) CPC. Under Sub-rule (b) of Order 29 Rule 2 CPC service is to be effected by leaving the summons or by sending it by post to the Corporation at the registered office. While commencing on this mode of service, Supreme Court in the case of shalimar Rope Works Limited v. Abdul Hussain H.M. Hasan Bhai Rassiwala and Ors. observed as under :-

Para 7 - 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 on his agent or such other person as aforesaid refuses to sing the acknowledgement or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is not 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 outdoor or some other conspicuous part of the house in which the defendant ordinarily resides on 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.

Para 8 - Sending summons to a corporation by post addressed to it as its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer 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. In the instant case nothing of the kind was done. It was not the case of he respondent in its rejoinder filed in the Miscellaneous case that the service of the summons was effected in accordance with the first part of Clause (b) of Rule 2 of the Order 29 of the Code."

8. In the present case, there is nothing on record to indicate that any effort was made to effect the service of summons for judgment on Secretary, Director or any Principal Officer of the defendant company. Therefore, the resort to mode of service provided in Schedule (b) of Order 29 Rule 2 CPC was uncalled for.

9. In the result, application under consideration is allowed. It is held that summons for judgment have not been validly served on the defendant company. Let fresh summons for judgment be issued to the defendant in the prescribed form in accordance with under Order 37 Rule 3(4) CPC, returnable on 11th March, 2002 before the regular bench.

10. Registrar (Vigilance) will enquire into the circumstances under which the plaintiff got issued "dusty" summons for judgment when there was no court order to this effect. Copy of the order be sent to and served on Registrar (Vigilance) today itself. He will identify and fix responsibility on the court official(s) responsible for this. The report be submitted within two months and placed before me on the administrative side.