1. I am satisfied that the summons in this case was not duly or properly served and that the defendant had no knowledge whatever of the institution or the hearing of this suit when the ex-parte decree was passed against him. The defendant was not in Bombay. The plaintiff's brother going three times to the house of the defendant with the bailiff to serve the defendant personally as mentioned in their affidavit of the 7th of June 1909, were mere pretences for the purpose of obtaining an order for substituted service. Laxman Jairam must certainly have known where the defendant was and I believe that the plaintiff also knew where he was'. The affidavit on which the order for substituted service was obtained is most unsatisfactory. It makes important allegations on information and belief without disclosing the source of information and the grounds of belief. I am satisfied that the summons in this suit was not duly or properly served on the defendant.
2. On the merits I am clearly of opinion that the case requires careful investigation. In view of the order I propose to make I feel that it is very desirable that I should refrain from discussing the merits as far as possible more especially as the matter has been before me on affidavits only. We have a solicitor's clerk holding on for six years to a promissory-note for a large amount carrying interest at twenty per cent, per annum obtained from men involved in litigation,--the note saved from the operation of the Law of Limitation by a single endorsement at the end of three years of a small payment at the back of the note. We have the fact that an unsuccessful attempt is made three days before the expiry of the next period of limitation to transfer the note to one Dwarkadas Gungadas. We have also the fact that the plaintiff buys this note on the last day and files a suit on the very same day. We have the fact that twelve days after the plaintiff obtains the decree in his suit he attempts to transfer it to Chuggan Khushal. These facts coupled with the very serious allegations that the defendant makes, renders it imperative that there should be a thorough investigation in this case.
3. At the argument of the Rule, however, the learned Counsel for plaintiff-both the Advocate-General and Mr. Bahadurji-have strenuously contended that the plaintiff's application is barred by the law of Limitation under Article 164, Schedule I to Act IX of 1908 which Act came into force in the beginning of this year. The period of time provided by that article is thirty days and this period begins to run from 'the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree.' I have come to the conclusion that the summons was not duly or properly served on the defendant the result being that time would in this case begin to run from the date the defendant applicant had knowledge of the decree. The decree would here mean the decree made in this suit in favour of the plaintiff on the promissory-note of the 21st of May, 1903, passed by the defendant and his father in favour of Luxman Jairam.
4. The plaintiff contends that the defendant had knowledge of the decree at the latest on the 7th of July 1909 and reliance in support of this contention is placed on the correspondence which the defendant has himself annexed to his affidavit affirmed on the 17th of August, 1909, and made in support of his application for this Rule to set aside the ex parte decree passed herein. The application for the Rule was made on the 19th of August so that if the plaintiff's contention is correct and if it is established that defendant had knowledge of the decree on the 7th of July, the application would be clearly time-barred. The question to be considered, therefore, is whether the defendant had knowledge of this decree previous to the 19th of July. This is a question of fact but to appreciate the fact correctly and to be able to ascertain whether the correspondence relied on does as a matter of fact convey such knowledge as is contemplated by Article 164 of the Limitation Act to the defendant it is necessary in the first place to understand the true meaning of the word 'knowledge.' The new Limitation Act having only lately come into operation and the clause relating to the commencement of the period of limitation for the application mentioned in Article 164 being also new there are no decisions which could help the Court in giving a true meaning to the word 'knowledge' as used by the Legislature. Strange to say the word does not appear to form the subject of any judicial discussion in English Courts. The passage read to the Court by Mr. Bahadurji from Benjamin on Sales (page 33) really throws no light on the subject. In the absence of any authoritative judicial interpretation of the word knowledge I have resorted to dictionaries to see if they help and I think they do.
5. The dictionary meaning of the word knowledge' as given in Webster's International Dictionary is: 'Clear perception of fact.' In Nuttall's Dictionary the meaning given to the word 'knowledge' is 'A clear and certain perception of that which exists.'
6. Accepting the meaning I now proceed to consider whether the defendant had knowledge; of this decree at the latest on the 8th of July as contended by the plaintiff. The correspondence annexed to the defendant's affidavit begins with a letter written on the 17th of May 1909 on behalf of one Dwarkadas Gungadas by the same solicitor who acts for the plaintiff in the suit. This letter demands immediate payment of the amount alleged to be due under the promissory-note on which the suit is based to Dwarkadas Gungadas who is stated to be holder in due course of the said note. Three days later, that is on the 20th of May, the defendant is informed by another letter that negotiations for transfer of the note had fallen through and the previous letter must be treated as cancelled. The defendant is not informed of anything that takes place before the decree is passed. It seems that on the very day the defendant is informed that negotiations for transfer to Dwarkadas had fallen through, the note is transferred to Pundlick Rowji--the plaintiff in the suit, a cousin of the original holder Luxman Jairam--who files the suit on the same day. An order for substituted service is obtained and the summons is said to have been pasted on the door of the defendant's house in Bombay. In spite of various allegations in the affidavits that defendant knew all about the summons, suit and decree, I have come to the conclusion that the defendant was not in Bombay when the summons was pasted on his house door, and that he knew nothing about the summons, the suit or the ex parts decree. The next step is a letter addressed by another firm of solicitors to the defendant dated the 3rd of July and purporting to be written on behalf of their client one Chhagan Khushal. This letter has been admitted by the defendant to have reached his hands on the 7th of July 1909. This is the letter on which the plaintiff relies as conveying knowledge of the decree in the suit to the defendant. The letter says:
Mr. Pundlik Rowji has arranged with our client Mr. Chhagan Khushal to transfer to him the decree passed in Mr. Pundlik's favour against you on the 22nd ultimo in High Court suit No. 411 of. 1909.
7. It then inquires if defendant has made any payments on account. This letter merely conveys information to the defendant that Pundlik Rowji had obtained a decree in a certain suit the number of which is given. The defendant on receipt of the letter replies saying it was impossible for Pundlik Rowji to have obtained any decree against him since he owed him nothing and that if he had obtained a decree it must be a fraudulent one.
8. This letter written on the 9th of July remains unreplied to till the 21st of the month when the defendant is for the first time informed that the decree was obtained in a suit filed to recover the amount due on a promissory-note passed in favour of Luxman Jairam on the 21st of May 1903. The plaintiff contends that the letter of the 3rd of July when it reached the defendant on the 7th conveyed to him knowledge of the decree; the defendant maintains that the knowledge was not conveyed to him till he received the letter of the 21st July. Did the letter of the 3rd of July convey the knowledge of the decree to the defendant? Are the contents sufficient to fix him with the requisite knowledge so as to give a start to the period of limitation against him? In my opinion the letter of the 3rd July is not sufficient to fix the defendant with knowledge of the decree. That letter merely told him that in a suit bearing a particular number a decree was passed against him at the instance of Pundlik Rowji. The defendant had monetary dealings by way of mortgage with Pundlik. The mortgage had been paid off. He would naturally assume that Pundlik Wad obtained some decree in connection with that transaction. Pundlik had no connection whatever with the promissory-note passed to Luxman Jairam. No intimation whatever was given to the defendant that Luxman had transferred the note to Pundlik Rowji.
9. How could the defendant under the circumstances be charged with having a certain and clear perception of the fact that a decree had been passed against him in favour of the plaintiff as the transferee and holder in due course of the promissory-note passed by him to Luxman Jairm. On the 7th of July, no doubt, the defendant heard from an entire stranger that the plaintiff had obtained a decree against him but that is, in my opinion, not sufficient to presume knowledge on the part of the defendant of the passing of the decree which I am asked to set aside. The use of the article 'the' in the words of Article 164 'knowledge of the decree' must be taken to require knowledge not of a decree but of the particular decree which is sought to be set aside and all the proved circumstances in the case show that the plaintiff' was studiously anxious to keep the knowledge of the suit and the decree from the defendant while the suit was pending and the decree was obtained.
10. The knowledge of the decree in question was, in my opinion, conveyed to the defendant for the first time when he received the letter of the 21st July from the solicitors of Chhagan Khushal because it was not till then that he learnt for the first time that a decree had been passed in favour of the plaintiff based on the promissory-note passed by him in favour of Luxman Jairam. He had not acquired clear and certain perception 'of these facts till he received the letter of the 21st of July and, therefore, I hold that the defendant had no knowledge of this decree more than thirty days prior to his application to set the same aside. Under the circumstances I make the rule absolute, set aside the ex parte decree passed herein, on the 22nd of June last and direct that the suit be tried on its merits between the parties. As the suit is now contested it will be transferred to the long cause list. Defendant must file his written statement and furnish a copy of the same to the plaintiff's solicitor within a fortnight from to day. The suit to be on the board on the 11th of October next.
11. Costs of this application to be costs in the cause.