Search Results Page
Search Results
1 - 3 of 3 (0.28 seconds)Punjab And Sind Bank vs Ramji Das Khanna And Anr. on 12 April, 1983
There is nothing on record to show that either the summons were tendered to the wife of the petitioner or she was told that defendant has to appear before Court within a period of ten days. A perusal of the order sheets reveal that on several dates either the ''Process fee was not filed by the plaintiff or annexures were not furnished as a result of which summons could not be issued. As regards substituted service it is clear from the perusal of copy of the newspaper '' Statesman'' dated 21.10.1995 that copy of the annexures namely the alleged loan agreement dated 24.3.1994 were not published in the newspaper. While dealing with the service of summons in the suit under O. 37 CPC, this Court in the case of Punjab and Sind Bank Vs. Ramji Das Khanna and another- took the view that where a process server has affixed only the copy of summons without affixing the copy of plaint and annexure thereto and the Registrar of the Court has not held any enquiry to determine whether service under the circumstances was sufficient, the service of summons is insufficient and it is a sufficient circumstance to set aside a decree. The Court took note of relevant rules of the CPC and the High Court rules in this regard. O. 37 CPC specifically provides that in a suit under O. 37 CPC, the plaintiff shall together with the summons under Rule 2, serve the defendant with a copy of the plaint and annexure thereto. Thus where only summons have been affixed without affixing copy of the plaint and annexures thereto, the service is not in accordance with the provisions of O. 37 Rule 3 (1) CPC and this would be a sufficient ground to set aside the decree.
Emess Advertising Service vs The Hindustan Times Ltd. on 10 March, 1997
7. The same view is taken by another bench of this Court in the case of New Bank of India Vs. M/s Master Steel Marketing Co.-1995 III AD (Delhi) 957. It was a case of the substituted service. It was held that where only copy of summons was published without publishing copy of the plaint and annexures there to, the service was not in accordance with law. As against this, learned counsel for the respondent has relied upon the decision in the case of M/s EMESS Advertising Service Vs. The Hindustan Times ltd., - . It was an ordinary suit for recovery and not under the provisions of O. 37 CPC. In that case publication was held to be sufficient. It is clearly distinguishable as it was rendered in the context of an ordinary suit in which case publication of summons is enough . In the case of an ordinary suit there is no need to affix copy of the plaint and the annexures thereto but in a suit brought under O. 37 CPC it is mandatory that plaintiff shall together with summons serve on the defendant a copy of the plaint and annexures thereto. It appears that learned District Judge was not satisfied with the explanation regarding date of knowledge of the decree given by the petitioner in his application under O. 37 Rule 4 CPC. Application as supported by the affidavit of the petitioner/ defendant. If at all learned Additional District Judge felt requisite details are lacking, the petitioner could have been directed to file additional affidavit or lead evidence regarding circumstances under which he came to know about the decree. Summary rejection of the petitioner's application under the circumstances was uncalled for more so when defendant denied the very cause of action viz the execution of the agreement dated 24.3.1994. In his application for setting aside the decree as well as for leave to defend, the petitioner denied the loan transaction. Bare look at the agreement renders it suspicious as it has so many cuttings which are unsigned. The only eye witness who allegedly signed the loan agreement namely Radhey Shyam has filed two self contradictory affidavits in this regard. Under the circumstances, the defense raised by the defendant/ petitioner cannot be said to be moonshine. The defendant's case, if proved, will non-suit the plaintiff/ respondent.
1