Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 652 (CAL)

Trimurti Cargo Movers Pvt. Ltd. v. Auto Cars

2016-08-18

I.P.MUKERJI

body2016
JUDGMENT : I.P. Mukerji, J. Sometime in 2014 the plaintiff instituted the present suit against the defendant in this court claiming a decree for Rs. 1,63,34,537/- together with interest @ 24% per annum. 2. The plaintiff is a Kolkata company having its registered office on Lenin Sarani. It has a branch office in Goregaon, Mumbai. 3. In the cause title, the first defendant is described as a registered partnership firm having its place of business Adalat Road, Aurangabad and a branch office at 39A, Harish Mukherjee Road, Kolkata. The second and third defendants are described as partners of the first defendant. 4. The plaintiff is in the transport business. The cause of action on which the suit is founded is that, on the instruction of the defendants, in 2008, the plaintiff transported their goods to various destinations throughout India. This agreement of 2008 was renewed by the agreement dated 7th March, 2011. The defendants made part payment, of the plaintiff's transportation charges the last of which was received by the plaintiff on 30th April, 2013. They claimed the balance in the suit. 5. On 9th February, 2015, an ex parte decree was passed against the defendant in the suit. The decree is for Rs. 1,43,18,537/- together with 12% simple interest p.a. from 1st May, 2013 till the date of payment. 6. This decree was made after placing the suit in the "undefended list". 7. The office of the Sheriff had issued a certificate about service on the defendant. There was also substituted service of the writ of summons by publication in the Times of India, Pune edition and in Dainik Bhaskar in its Hindi edition, further to others passed by this court on 13th November, 2014 and 24th November, 2014. 8. The department of this court had issued a certificate that the defendants had not entered appearance in the suit. 9. Although the decree was made on 9th February, 2015 this application to set aside the decree was filed on 10th march, 2016. It is made by the second and third defendants. It was accompanied by a condonation of delay application. It was said at the time of hearing of this application that only when the plaintiff started the execution process that the said defendants came to know that a decree had been passed against them. 10. It is submitted by Mr. Bhattacharya assisting Mr. It was accompanied by a condonation of delay application. It was said at the time of hearing of this application that only when the plaintiff started the execution process that the said defendants came to know that a decree had been passed against them. 10. It is submitted by Mr. Bhattacharya assisting Mr. Mitra, on behalf of the applicant defendants that the first defendant a partnership firm was closed at the material point of time. Hence, there was nobody to receive the writ of summons. The second and third defendants are not the partners of this firm and were sought to be served at the said place of business of the partnership firm. They had no notice or knowledge of the proceedings. The first defendant does not have any branch office at 39A, Harish Mukherjee Road, Kolkata-25. Affixation of the writ of summons on the premises did not serve any purpose. It is submitted that the substituted publication was made in a newspaper in Pune and that this publication did not result in any notice of the proceeding to the defendants. 11. In a suit to set aside an ex parte decree, where service is challenged, first, the court has to look as to whether service of the summons was made properly. 12. Let us see how the summons was served. 13. I have examined the report of the Deputy Sheriff dated 22nd September, 2014. This is annexure-B at page 36 to the affidavit-in-opposition of the plaintiff affirmed by Amit Kr. Dhavle on 25th June, 2016. The Deputy Sheriff says that the original writ of summons with copies of the plaint were attempted to be served on the defendant by the bailiff of the learned Civil Court at Aurangabad. Attempts were made on 18th July 2014 and 19th July 2014. It could not be served upon the first defendant as the company was closed. It could not be served on the second defendant and the third defendant apparently for the same reason. On 21st June, 2014 the writ of summons was despatched by this court to each of the defendants by speed post. But the packets were returned by the postal authority on 27th June, 2014 with the endorsement that the defendants had "left". 14. An application for substituted service was taken out by the plaintiff (GA 3403 of 2014). On 21st June, 2014 the writ of summons was despatched by this court to each of the defendants by speed post. But the packets were returned by the postal authority on 27th June, 2014 with the endorsement that the defendants had "left". 14. An application for substituted service was taken out by the plaintiff (GA 3403 of 2014). On 13th November 2014 this court ordered inter alia that a copy of the plaint together with the writ of summons be affixed on the outer door or wall of the said place of business of the defendant in Kolkata. An order was also passed directing publication of the proceedings in the newspaper "Lokmat" in its Marathi and Hindi editions and in "Dainik Bhaskar" in its Hindi edition by 5th December, 2014. This order was modified on 24th November, 2014 by directing the plaintiff to publish an advertisement in the Times of India, Pune edition instead of Lokmat. 15. Service in terms of the orders dated 13th November, 2014 and 24th November, 2014 was duly effected by affixing a copy of the summons on the outer wall of the Harish Mukherjee Road address of the first defendant in the cause title. Newspaper advertisements were also duly made. 16. No effort has been made by the applicant to disclose the constitution of the first partnership firm. Look at the way in which this application for setting aside the ex parte decree has been made. It is stated to be made by the second and third defendants. The petition is signed by Kajal Kumar Roy claiming to be the constituted Attorney of these defendants. An affidavit of competency has been affirmed on 8th March 2016 by Mr. Roy declaring that he was the constituted attorney. No power of attorney has been produced before the court. 17. The Deputy Sheriff in his mode of service report dated 18th March, 2016 further to the order of this court dated 13th November, 2014 stated that the summons had been affixed on the outer wall of the premises No. 39A Harish Mukherjee Road, Kolkata by the bailiff "on identification by one Achinta Das". 18. Yet the said defendants state, that the first defendant has no place of business in Kolkata. 19. According to the record of the register of firms obtained by the plaintiff on 21st March, 2016 both the defendant no. 18. Yet the said defendants state, that the first defendant has no place of business in Kolkata. 19. According to the record of the register of firms obtained by the plaintiff on 21st March, 2016 both the defendant no. 1 and 2 are shown as the partners of first defendant. This document is annexure-G at page 56 of the affidavit-in-opposition. 20. The applicants were served with the execution application on 23rd February, 2016. 21. First of all, it is said that the first defendant is not a registered firm and that the suit against it is not maintainable. 22. This proposition of law is plainly wrong. An unregistered firm can be sued under Order 30, Rule 1 (1) and (2) read with Section 10 of the Code of Civil Procedure. Only a registered firm can sue under those provisions read with Section 69 of the Partnership Act, 1932. Moreover, in annexure-G page 56 of the affidavit-in-opposition it is clearly stated that according to information available on 21st March, 2016, the first defendant is a registered firm having its place of business at Adalat Road, Aurangabad and that the second and third defendants are its partners. If the constitution of the firm had changed it was upto the defendants to cause a change in the entry in the register of firms. The entry in the register not having been changed the information available in the register of firms is deemed to be correct. The plaintiff has correctly impleaded the defendants. 23. The present application is one under Order 9, Rule 13 of the Code of Civil Procedure to set aside an ex parte decree on the ground that the summons were not duly served. 24. The second proviso of this rule is very important. It says that no court shall set aside a decree passed ex parte merely on the ground that there was irregularity in the service of the summons, if it is satisfied that the defendant had notice of the date of hearing and had time to appear. 25. It is quite clear from the above that on 18th July, 2014 and 19th July, 2014 the bailiff of the learned Civil Court Aurangabad attempted to serve the summons and the plaint on all the three defendants. The first defendant was closed. The second and third defendants were not available at the place of business of the first defendant. 25. It is quite clear from the above that on 18th July, 2014 and 19th July, 2014 the bailiff of the learned Civil Court Aurangabad attempted to serve the summons and the plaint on all the three defendants. The first defendant was closed. The second and third defendants were not available at the place of business of the first defendant. On 21st June, 2014 the summons were send by speed post to all the three defendants at the address mentioned in the cause title of the plaint. On 27th June, 2014 they were returned to the Sheriff with the endorsement "left". 26. Against this kind of defendants who are elusive, it was quite proper on the part of the plaintiff to obtain the order dated 13th November, 2014, from this court to make publication of the proceedings in newspapers. These advertisements were published in the Pune edition of the Times of India on 25th November, 2014 and in Dainik Bhaskar on the same day. I do not find any fault with this procedure. 27. Furthermore, a duplicate copy of the writ of summons along with the plaint was affixed by the bailiff on 20th November, 2014 at 2 p.m. on the outer wall of the premises no. 39A Harish Mukherjee Road, Kolkata-25. One remark in the mode of service of the Duputy Sheriff dated 18th March 2014 is very important. It appears that the premises of the first defendant were identified by Mr. Achinta Das. In those circumstances, it is difficult to believe that the first defendant had no place of business in Kolkata. 28. It is not very difficult to believe that since the institution of this suit the defendants deliberately stayed away from the proceedings. They are trying to near their heads and reopen the proceeding, at the execution stage. 29. In those circumstances, I think that the defendants were correctly impleaded in that suit. Secondly the writ of summons were deemed to have been properly served on all the defendants. The manner in which the service has been carried out is deemed to be good service under Order 5, Rule 20 of the Code. The plea taken by the second and third defendants that they are not connected with the first defendant is absolutely untrue, for the reasons given above. The whole conduct of the defendants is murky. The manner in which the service has been carried out is deemed to be good service under Order 5, Rule 20 of the Code. The plea taken by the second and third defendants that they are not connected with the first defendant is absolutely untrue, for the reasons given above. The whole conduct of the defendants is murky. Even the application has not been affirmed by them but by a Constituted Attorney whose power of attorney is not disclosed. The names of the partners of the first defendant are also not disclosed. 30. It is also possible to form an opinion under the second proviso of Order 9, Rule 13 that the defendants had knowledge of the proceedings and it was possible for them to attend the trial of the suit. They did not enter any appearance. Neither did they file any written statement. They waited till the suit was decreed and execution applications served upon them on 23rd February, 2016, to try to reopen the suit. One wonders, if the plaint and the summons could not be served at the address disclosed in the cause title, how could the execution application be received by the said defendants at the self-same address? 31. There is no merit in these applications. I refuse to set aside the ex parte decree dated 9th February, 2015. The applications, one for condonation of delay and the other for setting aside the ex parte decree are dismissed. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Applications dismissed.