Industrial Medical Engineers And ... vs Anil Nijhawan And Anr.
2004 Latest Caselaw 188 Del

JUDGMENT

Vikramajit Sen, J.

1. In the present case the Plaintiff has filed a Suit for the recovery of money under Order xxxvII of the CPC. On 16.10.2000 the learned Trial Court had arrived at the conclusion that the Petitioners, namely, M/s. Industrial Medical Engineers, Shri S.P. Bhargava and Shri Vikas Bhargava had been duly served. It was observed that Defendants No.1 and 2 had been served by means of Registered Post Acknowledgment Due on 22.9.2000, while the notices issued to Defendant No.3 had been returned back with the Report of the Postal Authorities that it had been ''Refused''. Defendants No.4 and 5 have been deleted from the array of the parties. However, since Defendants No.1 to 3 had not 'entered appearance', a Decree was passed against these persons. At the time of earning, learned counsel for the Respondent/Plaintiff had conceded that since Shri Vikas Bhargava was/is not a partner in the firm, the Decree against this person would not be proper. He, therefore, has prayed that Shri Vikas Bhargava be struck off fro the array of parties in these proceedings, and be deemed to have been struck off from the array of parties in the Suit also.

2. It appears that so far as the partnership firm, M/s. Industrial Medical Engineers, is concerned, (Defendant No.1 in the Suit), the Report of the Process Server on his attempt to serve summons under Order xxxvII is to the effect that since the propriety or/partner was not available, service could not be effected. However, as far as the service by Registered Post Acknowledgment Due is concerned the AD Card has been returned with an initial/signature purporting to be on behalf of the firm. The Process Sever has reported that Shri S.P. Bhargava was not available; but by the mode of service by Registered AD, the Report is that it had been `Refused'.

3. It cannot be gainsaid that the Court should be cautious and slow to proceed to adjudicate upon a list in the absence of a party thereto. A decision taken without affording sufficient opportunity to the affected party of being heard or entering his defense, is anathema to law. It is equally essential that a devious Defendant who is deliberately evading service should not be permitted to delay justice by adopting dilatory designs; this factor is of added significance when a summary suit is being tried. both these considerations have to be neatly and carefully balanced against each other. If there is scope for doubt, the benefit should be given to the party sought to be served.

4. The Postman is an independent agency whose Report should ordinarily be accepted. No cogent reason has been disclosed before me to doubt that the initial/signature on the AD Card was of a person having the control or management of the partnership business, since admittedly the service was directed to the principal place at which the partnership is carried on. It should not be forgotten that the Postman in the area normally has full knowledge of the identity of the addressees. The Process Server's Report in this context is indicative of the firm adopting evasive tactics; knowledge of the suit must be imputed to it. Keeping both modes of service in perspective, no doubt remains that the firm was actually served and had knowledge of the pendency other suit.

5. No error in the exercise of jurisdiction has been disclosed or is evident from the records.

6. Dismissed.

7. The amounts deposited in this Court be released to the Decree Holder/Respondent. Trial Court Records be returned.