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Rajasthan High Court · body

2015 DIGILAW 1646 (RAJ)

Transport Corporation of India v. Kushal Chand

2015-09-10

MOHAMMAD RAFIQ

body2015
JUDGMENT : 1. Transport Corporation of India, petitioner herein, has approached this court assailing judgment dated 14.07.2011 passed by learned Rent Tribunal, Ajmer, in Original Application No.111/2007 and judgment dated 18.06.2014 passed by learned Appellate Rent Tribunal in Rent Appeal No.21/2011. The Rent Tribunal, by aforesaid judgment directed eviction of tenant-petitioners from the rented premise of landlord-respondent. The Appellate Rent Tribunal, while dismissing appeal of tenant-petitioners, upheld judgment of the Rent Tribunal. 2. Landlord-respondent filed Original Application on 05.07.2007 under Sections 3(10) and 18 of the Rajasthan Rent Control Act, 2001 before the Rent Tribunal, Ajmer, against tenant-petitioners contending that since tenant-petitioner - Transport Corporation of India (hereinafter referred to as 'tenant-petitioner') is having paid up capital of more than one crore, it could be evicted from the rented premise on determination of tenancy after serving notice under Section 106 of the Transport of Property Act, 1882 (for short, 'the TP Act'). Landlord-respondent served notice under Section 106 of the TP Act on tenant-petitioner and thus determined the contract of tenancy. Despite receipt of notice, tenant-petitioner did not handover vacant possession of rented premise. Prayer was made in Original Application for recovery of possession and direction to tenant-petitioner to vacate the rented premise. 3. Tenant-petitioner contested original application by filing reply thereto. It was averred that valid notice under Section 106 of the TP Act has not been served at registered office of tenant-petitioner, which is public limited company, and landlord-respondent did not implead the public limited company as party respondent through its registered office. The Rent Tribunal allowed original application and directed tenant-petitioner to handover vacant possession of rented premise within a period of six months. The Appellate Rent Tribunal, while dismissing appeal filed by tenant-petitioner, has maintained judgment of the Rent Tribunal. Hence this writ petition challenging both the judgments. 4. Shri G.P. Sharma, learned counsel for tenant-petitioner, has argued that since the rented premise was taken on rent by public limited company having its registered office at Sikandrabad in the State of Andhra Pradesh, landlord-respondent was under obligation to implead the public limited company as party respondent through its registered office. Even the notice under Section 106 of the TP Act was required to be served at the registered office of the company. Findings recorded by the Rent Tribunal and the Appellate Rent Tribunal to the effect that service on tenant-petitioner was valid, is erroneous. Even the notice under Section 106 of the TP Act was required to be served at the registered office of the company. Findings recorded by the Rent Tribunal and the Appellate Rent Tribunal to the effect that service on tenant-petitioner was valid, is erroneous. The Rent Tribunal was wholly unjustified in applying provisions of Order 29, Rule 2 of the Code of Civil Procedure (for short, 'the CPC'), which are not applicable in the matter regulating service process in the case of Corporation. It is argued that statutory provisions regulating service process in the case of Corporations are contained in Section 51 of the Companies Act, 1956, which mandates that a document may be served on a company or an officer thereof, by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office. "Document" has been defined in Section 2(15) of the Companies Act, 1956, which includes summons, notice, requisition, order, other legal process, and registers, whether issued, sent or kept in pursuance of this or any other Act or otherwise. Both the Tribunals have failed to comprehend the correct position of law that since there was no valid service of notice under Section 106 of the TP Act, the order of eviction could not be passed. Reliance in this behalf is also placed on Section 146 of the Companies Act, which, inter-alia, provides that a company shall, as from the day on which it begins to carry on business, or as from the thirtieth day after the date of its incorporation, whichever is earlier, have a registered office to which all communications and notices may be addressed. 5. It is submitted that the landlord-respondent was fully aware about address of tenant-petitioner, which is evident from document, especially the annual report of tenant-petitioner, submitted by him as Exhibit-8. Even if a public limited company has its offices at several places, requirement of law is that notice on such company has to be served at its registered office. In the present case, no notice was served on tenant-petitioner at its registered office, rather they were served at the local office of the tenant-petitioner. It is argued that requirement of Section 111 of the TP Act was not complied with by landlord-respondent while serving notice after termination of tenancy. In the present case, no notice was served on tenant-petitioner at its registered office, rather they were served at the local office of the tenant-petitioner. It is argued that requirement of Section 111 of the TP Act was not complied with by landlord-respondent while serving notice after termination of tenancy. This fact is evident from perusal of Exhibit-1, the notice. 6. Learned counsel for tenant-petitioner, in support of the arguments, has relied on judgment of the Supreme Court in M/s. Shalimar Rope Works Limited v. M/s. Abdul Hussain H. M. Hasanbhai Rassiwala and others, (1980) 3 SCC 595 and judgment of the Calcutta High Court in Harendra Nath Ghosal v. Superfoam Private Limited, 1992 (74) Company Cases 740 . 7. Per contra, Shri J.C. Jain, learned counsel for landlord-respondent, submitted that address of corporate office of tenant-petitioner was given on the annual report at Exhibit-8. Landlord-respondent sent the notice on the corporate office where it was duly served. He also sent notice by registered post AD and AD was also received back with the signature of recipient, which proves that service of notice has been affected. In fact, the witness of tenant-petitioner, Shri Santosh Kumar Dubey, has admitted his signature from A to B on the Acknowledgement Due (Exhibit-9). He admitted that Director of the tenant-petitioner used to sit in its corporate office in Gurgaon. The Ajmer branch of tenant-petitioner falls under Jaipur zone. Section 51 of the Companies Act is directive in nature as is evident from the use of word "may" in its language. 8. Learned counsel for landlord-respondent, in support of his argument, has relied on judgment of the Delhi High Court in Parasarampuria Synthetics Ltd. v. Shankar Prasad, AIR 2003 Delhi 348 , wherein, the Delhi High Court, while considering provisions of Order 29, Rule 2 of the CPC, held that where summons were served on the corporate office of the company and were admittedly received by the employee of the company, who had executed the receipt affixing the seal of the company, it could not be said or held that the service was bad or invalid for contravening provisions of Order 29, Rule 2 of the CPC. Plea that summons have to be served only on the registered office, can not be accepted. Plea that summons have to be served only on the registered office, can not be accepted. Reliance is also placed on judgment of Andhra Pradesh High Court in H.C. Gupta and Another v. K.V. Ramana Rao, AIR 1985 AP 193 , judgment of this court in Ram Pal v. Sohan Lal, judgment of Karnataka High Court in P. Honnamma v. B. Jannath & Another and that of the Supreme Court in Kulkarni Patterns Private Limited and Others v. Vasant Baburao Ashtekar and Others, AIR 1992 SC 1097 . 9. I have given my anxious consideration to rival submissions and perused the material on record. 10. Before adverting to the merits of the case, it is deemed appropriate to take a brief resume of the cited case law. 11. The Supreme Court in M/s. Shalimar Rope Works Limited, supra, while dealing with the provisions of Order 29, Rule 2 of the CPC, held that the High Court was clearly wrong in upsetting judgment of trial court. It was held that Order 29, Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to what is meant by service of summons on the Secretary, Director or principal officer of the corporation. Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service, either by itself, or preferably, by way of an additional mode of service. If the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other principal officer of the corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence, then he can leave the summons at the registered office of the company and make a report to that effect, which was not done in the case before the Supreme Court. 12. The Supreme Court in Harendra Nath Ghosal, supra, while dealing with question of service of summons on the company, held that provisions of Section 51 of the Companies Act prevail over those of Civil Procedure Code. It was held that service of summons on a limited company has to be made at its registered office in accordance with provisions of Section 51 of the Companies Act, 1956. 13. It was held that service of summons on a limited company has to be made at its registered office in accordance with provisions of Section 51 of the Companies Act, 1956. 13. The Delhi High Court in Parasarampuria Synthetics Ltd., supra, on consideration of the provisions of Order 29, Rule 2 of the CPC, held that this provision "does not limit the service of summons on the registered office of the company alone. It provides for different modes which include service of summon on Secretary or Managing Director or Principal Officer of the Corporation or service through registered post on the Corporation's registered office or at the place where Corporation carries on the business in case it has no registered office. This in no case could be said to restrict the service of summons on the registered office only. Therefore, where summons were served on the corporate office of the company also and were admittedly received by the employee of the company who had executed the receipt affixing the seal of the company, it could not be said or held that the service was bad or invalid for contravening provisions of Order 29, Rule 2 ." 14. The Andhra Pradesh High Court in H.C. Gupta, supra, was dealing with case where tenant was a limited company and its Director was in occupation of suit premises as a director. The notice was received and replied by him without raising any contention that it was not valid notice. This objection was rejected and notice was held as valid notice served on the company. Similarly, the Karnataka High Court in P. Honnamma, supra, held that notice must be construed not with a desire to find faults in it, but it must be construed in a common sense way. 15. This court in M/s. Kishanlal Shankar Lal and Others v. Smt. Kushal Devi and Others, 2015 (1) WLC (Raj.) 741 , while dealing with challenge to notice under Section 106 of the TP Act, which was concurrently decided by courts below in favour of landlord, held that Section 114 cannot be invoked to upset decree of eviction. 16. 15. This court in M/s. Kishanlal Shankar Lal and Others v. Smt. Kushal Devi and Others, 2015 (1) WLC (Raj.) 741 , while dealing with challenge to notice under Section 106 of the TP Act, which was concurrently decided by courts below in favour of landlord, held that Section 114 cannot be invoked to upset decree of eviction. 16. The Supreme Court in Kulkarni Patterns, supra, held that when notice was sent by registered post in the name of company and that its Director admitted that notice was sent on correct address, service of notice sent by registered post in the name of company, who is tenant, is fully in accordance with requirement of Section 106 of the TP Act. 17. Coming now to the facts of the present matter, both the Tribunal and the Appellate Tribunal have concurrently recorded the finding that the notice (Exhibit-1) under Section 106 of the TP Act was sent to the corporate office of tenant-petitioner at Gurgaon and its branches at Jaipur and Ajmer, vide postal receipts Exhibit-2 to 4 and registered AD Exhibits 5 to 7 and Exhibit-9. As regards service of notice on the branch office of tenant-petitioner at Srinagar Road, Ajmer, Shri Santosh Kumar Dubey, the witness of tenant-petitioner, has accepted his signatures on AD Receipt (Exhibit-9). 18. Both the Tribunals have relied on judgment of Delhi High Court in Parasarampuria Synthetics Ltd., supra, wherein it was held that Order 29, Rule 2 of the CPC does not limit the service of summons on the registered office of the company alone. It provides for different modes, which include service of summon on Secretary or Managing Director or Principal Officer of the Corporation or service through registered post on the Corporation's registered office or at the place where Corporation carries on the business in case it has no registered office. This, in no case, can be said to restrict service of summons on the registered office only. When summons were served on corporate office of the company also and were admittedly received by the employee of the company, who had executed receipt affixing seal of the company, it could not be said that service was bad or invalid or in contravention of provisions of Order 29, Rule 2 of the CPC. When summons were served on corporate office of the company also and were admittedly received by the employee of the company, who had executed receipt affixing seal of the company, it could not be said that service was bad or invalid or in contravention of provisions of Order 29, Rule 2 of the CPC. The notice (Exhibit-1) was sent on the corporate office of the tenant-petitioner vide registered postal receipts (Exhibits 2 to 4), the AD receipts of the notice (Exhibits 5 to 7), which has been signed by concerning person affixing the seal. AD Receipt (Exhibit-5) indicates that notice was received in Jaipur zonal office by the person, who signed the AD Receipt, on 25.02.2007. 19. Contention that landlord-respondent should be required to prove the receipts of service by producing postmen, cannot be accepted because law on the question of service of notice by registered post AD is well settled. If the particulars of notice and postal address are correct and AD receipt has been received back with signature of recipient, service has to be presumed as valid in view of Section 27 of the General Clauses Act and Section 114 of the TP Act. If any party wants to rebut such presumption, it is free to do so by way of producing evidence. No such evidence in rebuttal has been produced by the tenant-petitioner. Finding of service of notice concurrently recorded by both the Tribunals does not call for any interference.In the result, writ petition fails and same is hereby dismissed.Petition dismissed.