All India General Transport Corporation v. Raghunath Sahay
1968-05-10
KANHAIYAJI
body1968
DigiLaw.ai
Judgment Kanhaiyaji, J. 1. This application is directed against an order passed by Sri S. C. Chakravarty, District Judge, Purnea in Miscellaneous Appeal No. 78 of 1966 confirming an order dated the 25th June, 1966 passed by the Munsif, Katihar in Miscellaneous Case No. 108 of 1965 refusing to set aside the decree obtained by opposite party No. 1. 2. The plaintiff-opposite party No. 1 filed a Money Suit No. 310 of 1964 for realisation of Rs. 3404.68 Paise for nondelivery of a consignment booked from Bombay to Katihar. The petitioner was defendant No. 1 and opposite party No. 2 was defendant No. 2 in the Court below. The suit was decreed ex parte against the petitioner which is a Company having its Head Office at 134/4 Mahatma Gandhi Road, Calcutta carrying on transport business all over India. The ex parte decree was passed on the 19th May 1965. The petitioner filed an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the said decree. The case of the petitioner is that no summons has been duly served and the petitioner got the knowledge of the suit only on the 20th July, 1965 when the Director of the petitioner gave telephonic information. Thereupon, the petitioner instructed its Advocate at Patna to do necessary pairvi in the suit, and thereafter an application for setting aside the ex parte decree was filed on the 16th August, 1965. Both the courts below have concurrently found that the summons had been duly served in accordance with the provisions of Order 29, Rule 2(b) of the Code of Civil Procedure, and the application having not been filed within thirty days from the 19th May, 1965, it was barred by time. Defendant No. 2 has not appeared at any stage of the suit or the application. Plaintiff, opposite party No. 1 has not appeared in this Court to contest the application of the petitioner. 3. The suit was instituted on the 3rd August, 1964. The Order dated the 21st September, 1964 shows that summons was served on defendant No. 2, but it was not issued against defendant No. 1 as conveyance charge was not filed. Later on, the summons on defendant No. 1 was issued, but it returned unserved.
3. The suit was instituted on the 3rd August, 1964. The Order dated the 21st September, 1964 shows that summons was served on defendant No. 2, but it was not issued against defendant No. 1 as conveyance charge was not filed. Later on, the summons on defendant No. 1 was issued, but it returned unserved. The plain- tiff-opposite party again filed requisites and fresh summons was issued, and as noted in the order dated 22nd March, 1965 the summons was duly served. By the same order the learned Munsif directed the plaintiff to file card. Registered post card was served on defendant No. 2, but it returned unserved on defendant No. 1, the petitioner. The witnesses examined on behalf of the petitioner have denied the service of notice. Witness No. 1, on behalf of the plaintiff, is the bailiff of the Small Cause Court, Calcutta. He stated that he served the summons on the petitioner at 134/4 Mahatma Gandhi Road, Calcutta. At first he met an employee of the petitioner and requested him to take the summons, and on his refusal he affixed the summons in the office of the petitioner, and wrote out the service report (Exhibit A). In this situation, the courts below have come to the conclusion that the summons on the petitioner, which is a corporation, had been duly served. On the question of limitation the courts below disbelieved the petitioners case that it got knowledge on the 20th July, 1965 as stated in the petition. In view of the findings on both the points, the Courts below have dismissed the application of the petitioner. The petitioner has, therefore, filed this petition in this Court under Sec.115 of the Code of Civil Procedure. 4. Mr. Jagdish Pandey, learned counsel appearing for the petitioner submitted that the provisions of Order 29, Rule 2(b) of the Code of Civil Procedure do apply only to corporations and not to the Companies and hence, there was no due service of summons on the petitioner.
4. Mr. Jagdish Pandey, learned counsel appearing for the petitioner submitted that the provisions of Order 29, Rule 2(b) of the Code of Civil Procedure do apply only to corporations and not to the Companies and hence, there was no due service of summons on the petitioner. Secondly, he submitted that even if the case made out in the petition that the petitioner got knowledge on the 20th July, 1965 be false, it was the duty of the court to find out the actual date on which the petitioner got the knowledge and in case it was found that the petitioner got the knowledge within 30 days of the ex parte decree, the application should have been allowed. Thirdly he submitted that the summons cannot be taken to have been served under the provisions of Order 5, Rule 10 of the Code of Civil Procedure. He relied on an English case, Baroness Wenlock V/s. River Dee Company, (1887) 36 Ch. D 674 for the proposition of law that the Corporation is created by the Act of the Parliament and the Companies are not the corporation. Order 29, Rule 2 of the Code of Civil Procedure is as follows:- - "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 on 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." 5. The word Corporation has been used in the Code of Civil Procedure with reference to Sec.34 of the Indian Companies Act. Under that section when a company is registered, the Registrar of Companies certifies under his hand the fact of such registration. The effect of incorporation is that the company becomes a body corporate having perpetual succession and a common seal. It also refers to corporations established by the Act of Parliament. This is obvious because Order 29 of the Code of Civil Procedure refers to corporations while Order 30 of the Code of Civil Procedure refers to firms and there is no specific provision for the companies registered under the Indian Companies Act.
It also refers to corporations established by the Act of Parliament. This is obvious because Order 29 of the Code of Civil Procedure refers to corporations while Order 30 of the Code of Civil Procedure refers to firms and there is no specific provision for the companies registered under the Indian Companies Act. It is not disputed that the petitioner is a company incorporated under the Indian Companies Act having its registered Office at 134/4 Mahatma Gandhi Road and the summons had been affixed at the office of the petitioner. Therefore, the Courts below have not committed any error in holding that the service of summons had been duly effected on the petitioner. The contention of Mr. Pandey that the court ordered that summons be served by registered post under the provisions of Order 5, Rule 20(A) of the Code of Civil Procedure, amounts to a finding by the court that there was no service of summons on the defendant. Order 5, Rule 20(A) of the Code of Civil Procedure is not applicable in this case. It only applies when summons is returned unserved. The order of the learned Munsif for service of summons by registered post was under the provisions of Order 5, Rule 10 of the Code of Civil Procedure (Patna amendment), it was in addition to the mode of service laid down in the order. The facts of the case of Mahabir Prasad Bhagat V/s. Balkishun Das, AIR 1922 Pat 376 relied on by Mr. Pandey are entirely different. In that case the scope of Order 5 Rule 13 and Order 30 Rule 3 has been considered and there is no discussion of Order 5, Rule 29, of the Civil P. C. The case of Sri Lakshmi Srinivasa Oil and Rice Mills V/s. Veeranjaneyulu, AIR 1960 Andh Pra 383 has correctly said that the calling in aid of Order 5 Rule 20 (A) of service by post is conditioned upon the contingency arising when summons is registered unserved. 6. In Order 5, Rule 10, of the Civil P. C. a proviso has been added, which permits the court to send the summons to the defendant by post in addition to the mode of service laid down in the rule. This provision is permissive and not mandatory.
6. In Order 5, Rule 10, of the Civil P. C. a proviso has been added, which permits the court to send the summons to the defendant by post in addition to the mode of service laid down in the rule. This provision is permissive and not mandatory. When the Court finds that summons has been duly served it was not essential to wait for service of summons by registered post. 7. Another point involved in the case is the question of limitation. Both the Courts below have found that the date of knowledge given by the petitioner in paragraph No. 7 of the application as the 20th July, 1965 was wrong and could not be acted upon. The Courts below have considered the evidence of both the parties in detail and have held as stated above. In my judgment it is not necessary for the courts to find out the actual date of the knowledge of the petitioner when they find, as a fact, that the date of knowledge asserted by the petitioner is wrong. In this view of the matter, I must hold that the application was barred by time and the finding of the court below is not vitiated. 8. For the aforesaid reasons, I am of the view that interference is not called for. Therefore, the petition is dismissed, but without costs.