Skip to content


Shrinath Brothers Vs. Century Spg. and - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 2083 of 1964
Judge
Reported inAIR1968Bom443; (1968)70BOMLR219; 1968MhLJ510
ActsCode of Civil Procedure (CPC), 1908 - Sections 41 and 141 - Order 5, Rule 21-A - Order 30, Rules 3 and 5; Arbitration Act, 1940 - Sections 14(2) and 41
AppellantShrinath Brothers
RespondentCentury Spg. and ;mfg. Co. Ltd.
Appellant AdvocateD.R. Dhanuka, Adv.
Respondent AdvocateS.M. Jhunjhunwala, Adv.
Excerpt:
.....in all such cases the court should hold an inquiry and either declare the summons to have been duly served or to order fresh service in a proper manner. - - the learned judge, however, decided the petition not on the actual position as to whether there was or was not a good service, but on the assumption of correctness of the contention of the petitioners that the notice of filing of the award had not been served on them, which assumption he again negatived when he passed judgment in terms of the award. in this case, i find that these provisions were not complied with and i hold that the service dated 25th april 1963 was insufficient and, therefore, bad in law. these conditions have not been satisfied and, in my opinion, the city civil court had no jurisdiction to pass judgment in..........on merits. and if he came to the conclusion that there had been no proper service of the notice filing of award, he could have dismissed the petition as premature in which case the petitioners could have waived or accepted service and repeated their petition. the learned judge, however, decided the petition not on the actual position as to whether there was or was not a good service, but on the assumption of correctness of the contention of the petitioners that the notice of filing of the award had not been served on them, which assumption he again negatived when he passed judgment in terms of the award. this case led to certain curious results, which i will mention now.4. on 4th august 1964, after their petition for setting aside the award was dismissed as premature, the.....
Judgment:
ORDER

1. This is a revision application under the provisions of Sections 115 of the Code of Civil Procedure against an order of the Bombay City Civil Court, making a notice of motion for pronouncing judgment in terms of an award absolute and passing a decree in terms of the said judgment.

2. The facts leading to this case, briefly stated, are :-That on 7th June 1962, there was an award made against the petitioners in favour of the respondents. On 23rd March 1963, the arbitrator filed the said award in the Court. On 11th April, 1963, notice of filing of the award was issued by the Court and despatched to the petitioners, who are a partnership firm, in a registered cover addressed to the firm. The acknowledgment for this registered cover appears to have been signed on 25th April 1963 by a person signing as Raja Shankar. It is not stated in the acknowledgment as to whether this Raja Shankar was a partner of the petitioners firm or the manager in charge of the business firm or the manager in charge of the business at the time of service. Whether this is sufficient service of notice of filing of the award or not is a matter in controversy with which I shall deal later. On 3rd July 1963, the respondents took out a notice of motion for judgment in terms of the award relying on the acknowledgment dated 25th April 1963. On the next day, i.e., 4th July 1963, the petitioners in this revision application filed a petition in the City Civil Court for setting aside the award dated 7th June 1962 on grounds stated in the said petition. The petitioners, however, stated in the said petition that the notice of filing of the award had not been served upon them by the Court. The respondents filed an affidavit in reply to the petition alleging that the notice of filing of award had been served on the petitioners on 25th April 1963 and also controverting the grounds on which the award was sought to be set aside. On 24th July, 1964, the petition for setting aside the award was dismissed. The order on the said petition is Exhibit 'A' to this petition and reads as under:-

'This petition to see aside an award can be disposed on a short point, viz., whether it is maintainable.

2. The facts necessary to this petition may be briefly stated. The dispute between the parties were referred to arbitration and the arbitrators made their award on 7th June 1962. It appears that on 11th April 1963 notice of filing of the award was issued and was served on the petitioners on 25th April 1963. But the petitioners deny that notice was ever served upon them. Assuming that statement as correct, then in my opinion, the petitioners were not entitled to file by any petition at all, till they were served with the notice of filing of the award because under Article 158 of the Indian Limitation Act the period of limitation of 30 days would begin from the date of service of notice of filing of the award and if the petitioners say that they were not served with the notice of filing the award I do not see why at all it was necessary for them to file a petition in this Court to have that award set aside. But the petitioners say that they took search of the proceedings on 24th June 1963 and thereafter on 4th July 1963 they filed the present petition. If the statement of the petitioners is to be accepted as correct, that they were not served with the notice of filing of the award, the petition is misconceived by and not maintainable. The petition is, therefore, dismissed. Petitioners to pay the respondent the costs of the petition.

3. I must here that the learned Judge on the one hand says that it appeared to him that on 11th April 1963 the notice of filing of the award was issued and the same was served on the petitioners on 25th April 1963, on the other hand, he dismissed the petition as premature on the footing that the notice of filing of the award had, as alleged by the petitioners, not been served on them. The learned Judge decided the matter as if on a plea of demurrer. I am assured by the learned advocates of the parties that the fact of service of the notice of filing the award was alleged by one party and denied by the other and was a matter in controversy and neither of the parties had either pleaded or applied that the matter be decided as if on a plea of demurrer. The learned Judge ought to have examined the nature of service and determined whether the service was proper or sufficient. In case he came to the conclusion that on 25th April 1963 the petitioners had been served with notice under Section 14(2) of the Arbitration Act, he would have come to the conclusion that by the petition dated 14th July 1963 was barred by the law of limitation, in which event if the petitioners had made any application for condoning delay under the Indian Limitation Act, 1961 he would have considered such application on merits. And if he came to the conclusion that there had been no proper service of the notice filing of award, he could have dismissed the petition as premature in which case the petitioners could have waived or accepted service and repeated their petition. The learned Judge, however, decided the petition not on the actual position as to whether there was or was not a good service, but on the assumption of correctness of the contention of the petitioners that the notice of filing of the award had not been served on them, which assumption he again negatived when he passed judgment in terms of the award. This case led to certain curious results, which I will mention now.

4. On 4th August 1964, after their petition for setting aside the award was dismissed as premature, the petitioners appeared before the Registrar of the Court, and, in fact, accepted the service of the notice of filing of the award. On 17th August 1964, the respondents in this petition filed a petition against the petitioners in this petition, alleging that the petitioners here had in fact been served with the notice of filing of the award on 25th April 1963 and applying for an injunction, restraining the petitioners from acting on the alleged service of the notice of filing of the award on 4th August 1964 and restraining them from filing a petition for setting aside the award on the basis of such service. The respondents served this injunction on the petitioners and thereafter had their notice of motion for judgment in terms of the award placed on the Board for hearing. This notice of motion came up for hearing on 8th September 1964. The petitioners filed an affidavit in reply to the notice of motion, setting out the correct facts, but, notwithstanding this, the learned Judge made the notice of motion absolute on the footing that the petitioners had been served with the notice of filling the award on 25th April 1963 and had not filed any petition for setting aside the award. Thus, judgment in terms of award has been passed against the petitioners without giving them and opportunity to contest the award.

5. I have examined the acknowledgment dated 25th April 1963 and the affidavit of service of the notice of filing of the award and I find that the acknowledgment is signed by one Raja Shankar. When this petition came up for hearing before me on the 14th November 1976, I drew the attention of the learned advocate for the respondents to the provisions of Order 30, Rr. 3 and 5 of the Code of Civil Procedure. Rule 3 provides that a summons for a firm must be served either upon any one or more of the partners or, in the alternative, at the principal place at which the partnership business is carried on in India upon any person having at the time of service the control or management of the partnership business there, and Rule 5 provides that the person who is served must also be served with a notice informing him in what capacity he was being served. I told the learned advocate for the respondents that if it was his contention that Raja Shankar who had signed the acknowledgment, was either a partner or a manager of the business in charge of it at the time of service, he must make inquiries and make a further affidavit before I hold the service to be sufficient. No such affidavit has, however, been made. In fact, neither of the parties is able to state who this Raja Shankar is. It is not even alleged that a notice under Rule 5 of Order 30 accompanied the notice of filing of the award showing in what capacity the notice was being served.

6. Personal service of the processes of a Court by the officers of th same or another court is and has always been the normal mode of service, O. 5, R. 21-A of the Code of Civil Procedure gives a facility in this modern age of permitting parties to serve processes of a Court by registered post to save them from the trouble and expense of effecting personal service at places outside or even within the jurisdiction of the Court, but this facility does not take away or affect the provisions of ). 30, Rr. 3 and 5 which must, in any event, be complied with. If a process is addressed to a partner by registered post, he must also be informed in what capacity it is addressed to him. Similarly, if the process is addressed to a person in his capacity as manager of the business in charge of it at the time of service, he must be so informed, even if the service is by registered post.

7. Order 5, Rule 21-A as applicable to Bombay itself provides that an acknowledgment purporting to be signed by the defendant shall be deemed only to be 'prima facie' proof of service. In this case it does not even purport to be signed by the defendant. In all such cases the Court should hold an inquiry and either declare the summons to have been duly served or to order fresh service in a proper manner. In this case, I find that these provisions were not complied with and I hold that the service dated 25th April 1963 was insufficient and, therefore, bad in law. It has been argued before me Mr. Jhunjhunwala for the respondents that the provisions of Order 30, Rules 3 and 5, are not applicable to notices under Section 14(2) of the Arbitration Act. There is, however, no substance in this argument in view of the fact that Section 141 of the Code of Civil Procedure makes the provisions of Civil Procedure Code applicable to proceedings other than suits. Section 41 of the Arbitration Act also provides that the provisions of Civil Procedure Code apply to proceedings in Court under the Arbitration Act.

8. There being no service of the notice of filing of the award on 25th April 1963, there can be no judgment in terms of the award. Sections 14 and 17 of the Arbitration Act provide certain conditions precedent before a Court assumes jurisdiction in the matter of passing judgment in terms of as award. A notice of filing of the award should have been served on the party against whom the judgment is passed and he should have either filed no petition for setting aside the award or if he has filed such petition, it should have been refused. These conditions have not been satisfied and, in my opinion, the city Civil Court had no jurisdiction to pass judgment in terms of the award. I therefore, allow te revision application and set aside the order dated 8th September 1964 of the City Civil Court, making the respondents notice of motion for passing judgment in terms of the award against the petitioners absolute. The judgment and decree shall stand set aside.

9. Each party shall bear its own costs of the notice of motion dated 3rd July 1963 on which the order dated 8th September 1964 was passed and of this petition.

10. Rule made absolute.

11. Judgment and decree set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //