Bishwanath Agarwal vs Wodrap Corporation
2006 Latest Caselaw 1358 Del

JUDGMENT

A.K. Sikri, J.

1. By this common order I propose to dispose of these three petitions which are preferred against summoning orders dated 5.7.2005 in Complaint Case Nos. 1856/2005,1857/2005 and 1858/2005 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The petitioner is challenging the said orders on the ground that the complaints filed by the respondent here are premature and have been filed before the time limit prescribed under the Act for the service of notice had expired.

2. The complaint filed by the respondent is based on the allegations that the petitioner had issued certain cheques, which were dishonoured with the Banker's endorsement "Stop Payment" dated 12.4.2005 sent on 14.4.2005. The respondent accordingly sent legal notice under Section 138 of the Act dated 12.5.2005 and thereafter the complaint was filed on 24.5.2005. On the basis of pre-summoning evidence the learned ACMM has passed summoning orders dated 5.7.2005. Submission of the learned Counsel for the petitioner is that since the respondent has not stated as to on which date notice was served, as per the presumption under the General Clauses Act one month's time is to be given and, therefore, notice would be deemed to have been served only on 12.6.2005. The petitioner was to be given 15 days' time for making payment which would expire on 27.6.2005. In these circumstances, filing of the complaint on 24.5.2005 much before the deemed date of service would clearly be premature and could not have been entertained by the learned ACMM.

3. It is specifically stated in the complaint that notice of demand dated 12.5.2005 was sent to the petitioner by registered AD post as well as UPC and in para-9 it is mentioned that the same is presumed to be served within a week from the date of dispatch and the complaint is filed within one month from the date of expiry of 15 days after the service of legal notice. Para-9 of the complaint reads as under:

That the complaint has been filed within one month from the date of expiry of 15 days after the service of Legal Notice. The service of the Legal Notice is preferable (sic.) presumed within a week from the date of dispatch of the Regd. A.D. and UPC. The Registered A.D. Receipts received are also attached herewith.

4. It is not in dispute that the notice was sent by registered AD post as well as UPC at the correct address of the petitioner herein. It is presumptuous on the part of the petitioner to contend that the notice would be deemed to be served as per the General Clauses Act after the expiry of one month's period and, therefore, the deemed date of service would be 17.6.2005. Section 27 of the General Clauses Act which draws presumption of service when the letter is sent by post by properly addressing, pre-paying and posting by registered post does not lay down any such period. Section 27 of the General Clauses Act is reproduced for this purpose:

27. Meaning of service by post.-Where any [Central Act] or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expression "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effect at the time at which the letter would be delivered in the ordinary course of post.

5. It is clear from the reading of the aforesaid section that the deeming provision comes into play "at the time at which the letter would be delivered in the ordinary course of post". Period of one week for service of notice sent by registered post from Delhi to Varanasi, U.P. would be normal/reasonable period and, therefore, the deemed date of service as 19.5.2005 presumed by the respondent would be proper and valid.

6. In any case, nothing would turn on this aspect, namely, whether notice should be presumed to have been served within one week or one month. Fact remains that when the legal notice was sent on 12.5.2005 and even it is presumed to have been served within one week i.e. by 19.5.2005, complaint was filed on 24.5.2005 and obviously complaint is filed before the expiry of 15 days period to make the payment of the dishonoured cheque. The question that arises, therefore, is as to whether such a complaint was premature and could not have been entertained. I am. however, of the opinion that it would have no bearing inasmuch as the summoning order is passed on 5.7.2005. Therefore, the date on which the cognizance was taken by the learned ACMM and summoning orders issued much after 15 days had expired from the date of service of the notice, payment had not been tendered by the petitioner herein. Therefore, even though on the date of filing of the complaint 15 days' period had not expired, the period of 15 days had elapsed on the date on which cognizance was taken and the petitioner had not made the payment and, therefore, summoning order could be passed on that date. Filing of the complaint before the expiry of 15 days could, at the most, be irregularity and at this stage it cannot be argued that summoning order is bad in law, when on the date it was passed, all ingredients of Sections 138/141 were, prima facie, satisfied.

7. In view of the aforesaid proposition of law, which would apply in the cases at hand as well, these petitions are misconceived and are accordingly dismissed.