Delhi District Court
Shri Ram Avtar Gupta vs M/S Sri Ganganagar Coop. Cotton on 22 January, 2010
IN THE COURT OF SH. KAMLESH KUMAR; AD&SJ(CENTRAL)-17,DELHI
M. No. 46/08
Shri Ram Avtar Gupta ......Plaintiff
Versus
M/s Sri Ganganagar Coop. Cotton
Complex Ltd. & Ors. .......Defendants
ORDER
This order will dispose of an application under Order 9 Rule 13 read with Section 151 CPC filed on behalf of the Defendant no.1 M/s Shri Ganganagar Cooperative Cotton Complex Ltd. for setting aside the exparte decree dated 03.09.2001 in the suit for recovery of money filed against them by the Plaintiff/Decree Holder Shri Ram Avtar Gupta.
2. The Applicant-JD/Defendant No.1 has stated that the summons of the suit were issued on 30.05.2001 on filing of process fee under registered cover and UPC for 23.07.2001. The Applicant has further stated that this court held that the summons were duly served but failed to appreciate that no summons were issued through PF and therefore, the service of summons was improper / incomplete. The Applicant, further, submitted that the court proceeded mechanically in hush manner and proceeded against them exparte. The Applicant further stated that this court relied on AD card which bears no sealf
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of the Defendant No.1 and that the Applicant was not functioning and had been was shut-down on 04.01.2000, as a result there was no competent person who could have received the summons. The Applicant has alleged that the service of summons is manipulated and the AD card is manufactured/fabricated in collusion with the Plaintiff and postal authorities. The Applicant has submitted that their non- appearance on 23.07.2001 was neither intentional nor deliberate. The Applicant has also submitted that they have moved the present application immediately on coming to know about the exparte decree and prayed that the exparte decree/order dated 03.09.2001 be set aside.
3. The application has contested on behalf of the Decree Holder/Plaintiff. In reply to the application, the Plaintiff has claimed that the application is an abuse of process of law and can not be filed without depositing the decretal amount. The Decree Holder denied that the Judgment Debtor had been shut down since 04.01.2000 and claimed that it is an eyewash to forfeit the claims of its creditors. The Decree Holder has, further, submitted that the Judgment Debtor / Defendant no.1 was duly served as is evident from the record. The Decree Holder, also, submitted that the summons of suit were sent under certificate of posting and under registered cover. The AD card on record bears the signatures (of somebody). The summons were sent at the correct address. The Decree Holder has submitted that the
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Judgment Debtor/Defendant no.1 was rightly proceeded against exparte and prayed that the application be dismissed.
4. I heard ld. counsel for the parties at bar and have carefully gone through the entire material on record.
5. Ld. counsel for the Applicant-JD/Defendant no.1 has vehemently argued that the service of summons of suit was not proper in as much as no summons of suit were sent through PF and the AD card does not bear the seal of JD and further that there was no competent person at the address to receive the summons. The arguments of ld. counsel have no force in the eyes of law. Ld. counsel, in fact, could not comprehend the meaning of PF i.e. "process fee". The summons/notices etc. are not sent through process fee. In fact, process fee (charges) is paid towards meeting the expenses of issuing the summons/notices. The court had directed the service of summons under certificate of posting and under registered cover. The record reveals that the summons were sent at the correct address under certificate of posting as well as under registered cover. The Acknowledgment Card bears the correct address of JD/Applicant and bears the signatures of somebody with endorsement, under the signatures of 'S.O.' It is evident that 'S.O.' is the designation of the person who received the summons and signed the acknowledgment.
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The 'S.O.' may stand for Section Officer or may be Security Officer. In case, the unit of Judgment Debtor was really closed/shut down, there would have been security officials and probably the S.O. stands for Security Officer. However, it is evident that the summons were sent at the correct address of the Applicant-JD society and were delivered by the postal authorities.
6. The law on the point is well settled. The service of summons at the address of the company/society is good service. (Reference may be made to AIR 1993 Calcutta 28; 32 - P.Sen (Engg.) Pvt. Ltd. Vs Delite Builders (P) Ltd.). It is, also, settled law that when a notice is sent through 'registered post' on correct address - it is presumed to have been delivered to the addressee under Section 27 of the General Clauses Act, 1897. (Reliance placed on AIR 1989 SC 630 - M/s Madan & Co. Vs Wazir Jaivir Chand, wherein it was also observed by their lordships that 'too strict and too liberal compliance of the language of statutory provision would be impracticable & unworkable).
7. Section 27 of the General Clauses Act, 1897 provides that a presumption of service arises when an endorsement is made concerning the service. The 'postman' in making the endorsement is a person acting 'in an official capacity' and therefore, a presumption of the correctness arises and addressee out of station.
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8. In the instant case, the summons of suit were sent at the correct/registered address. The summons were duly delivered and AD card has been received back in acknowledgment of receipt of the summons. The summons of the suit sent under postal certificate has not been returned and therefore, deemed to be served on the Applicant-JD/Defendant No.1.
9. The contention of ld. counsel for the Applicant-JD / Defendant no.1 has no force in view of the settled position of law discussed hereinabove and hence rejected. The application has no merits and is liable to be dismissed.
10. I order accordingly.
Announced in the open court (KAMLESH KUMAR)
Today i.e. on 22 January 2010 ADDL. DISTT. JUDGE
DELHI
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M.No. 46/08
22.01.2010
Present: None.
Vide my separate order of the date, the application under Order 9 Rule 13 read with Section 151 CPC filed on behalf of the Defendant no.1 M/s Shri Ganga Nagar Cooperative Cotton Complex Ltd. for setting aside the exparte decree dated 03.09.2001 has been dismissed.
File be consigned to record room.
(Kamlesh Kumar) ADJ/Delhi 22.01.2010
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