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Tek Chand Madan Vs. Shyam Kamal Agencies - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal No. 1109 of 1976 and Suit Appeal No. 251 of 1976
Judge
Reported inILR1977Delhi348
ActsCode of Civil Procedure (CPC), 1908 - Order 37, Rule 2; Limitation Act, 1963 - Sections 3; Delhi High Court (Original Side) Rules, 1967 - Rule 2
AppellantTek Chand Madan
RespondentShyam Kamal Agencies
Advocates: Madan Bhatia and; Sheel Sethi, Advs
Cases ReferredThe Punjab Oil Expellers Co. v. Madan Lal Nanda
Excerpt:
.....the defendant was out of station. the notice sent at delhi address (modella house) was tendered to shyam kishore tandon a partner of the firm on 24-4-1976 who refused to receive the same and the process server acting under order 5 rule 17, c.p .c. affixed a copy of notice at that place and his report was attested by two witnesses. the third notice was also issued at another address of delhi and when the process server reached there, he was told to contact the partner at modella house. he went at that address on 29-4-76 and presented the notice to shyam kishore who refused to accept service. this process server too acted under rule 17 of order 5 c.p .c. and affixed a copy of notice there.; the defendant moved an application on 18-5-76 under order 37 rule 2 c.p.c. for leave to appear and..........concerned was instituted by tek chand madan against m/s. shyam kamal agencies through its partner shyam kishore tan- don on 27-2-1976 under order xxxvii rule 2 of the code of civil procedure for recovery of rs. l,01,938.00 . (2) the plaintiff's case as revealed by his plaint is that he is payeecum-holder for valuable consideration of the following hundis which were drawn by the defendant in his favor on itself on deposit of the full amount by the plaintiff with the defendant stated in each hundi ; seriall dateofhundis cue date amount 170. rs. 1. 16-3-19-72 ....... 10-3-1973 5,000 2. 25-4-1972 ....... 19-4-1973 5,000 3. 14-5-1972 ....... 8-5-1973 5,000 4. 1-9-1972 ....... 25-8-1973 5,000 5. 11-9-1972 ....... 31-3-1973 5,000 6. 30-10-1972 ..... 31-3-1973 4,700 7. 1-7-1972 ............
Judgment:

M.S. Joshi, J.

(1) The suit No. 251 of 1976, with which I am at the moment concerned was instituted by Tek Chand Madan against M/s. Shyam Kamal Agencies through its partner Shyam Kishore Tan- don on 27-2-1976 under Order xxxvii Rule 2 of the Code of Civil Procedure for recovery of Rs. l,01,938.00 .

(2) The plaintiff's case as revealed by his plaint is that he is Payeecum-Holder for valuable consideration of the following Hundis which were drawn by the defendant in his favor on itself on deposit of the full amount by the plaintiff with the defendant stated in each hundi ; Seriall DateofHundis Cue date Amount 170. Rs. 1. 16-3-19-72 ....... 10-3-1973 5,000 2. 25-4-1972 ....... 19-4-1973 5,000 3. 14-5-1972 ....... 8-5-1973 5,000 4. 1-9-1972 ....... 25-8-1973 5,000 5. 11-9-1972 ....... 31-3-1973 5,000 6. 30-10-1972 ..... 31-3-1973 4,700 7. 1-7-1972 ....... 24-6-1973 10,000 8. 1-7.1972 ....... 24-6-1973 10,000 9. 6-3-1972 ........ 28-2-1973 2,000 10. 10-4-1972 ....... 4-4-1973 2,000 11. 9-3-1972 ....... 3-3-1973 4,000

(3) The plaintiff is the holder for valuable consideration and in good faith being the endorsee of the following hundis which were drawn by the defendant on itself in favor of different payees specified therein and who endorsed the said hundis in favor of the plaintiff after receiving full amounts specified in the hundis from the plaintiff and duly delivered the said hundis to him : Seriall Date of Hundi No. 1. 29-1-1973 2. 22-1-1973 3. 22-1-1973 4. 29-1-1973 28-4-1973 10,000 21-4-1973 5,000 21-4-1973 3.000 28-4-1973 4,000

(4) The plaintiff is also payee-cum-holder for valuable consideration of the following hundis which were drawn by the defendant in favor of the plaintiff on itself on deposit of the full amount by the plaintiff with the defendant stated in the hundis : Seriall Date of Hundi Due date Amount No. 1. 13-12-1971 ....... 7-12-1972 3,000 2. 20-2-1972 ....... 14-2-1973 5,000 3. 7-1-1972 ....... 3-1-1973 2.000

(5) The plaintiff was paid Rs. 3,000.00 by the defendant. Rs. 2,000.00 by a bank draft dated 31-5-1973 and Rs. l,000.00 by a cross cheque dated 5-7-1973. He adjusted the said amount of Rs. 3,000.00 rateably against the aforesaid 3 hundis and thus a balance of Rs. 7,000.00 was left payable by the defendant.

(6) The hundis aforesaid were presented to Shyam Kishore Tandon, partner of the defendant on many occasions after the due dates but the same were dishonoured by him. All these hundis were again presented to Shyam Kishore Tandon, in the presence of Chaudhary Udai Bhan, Notary Public, Delhi on 24th February, 1976 at 3 P.M. at Modella Show Room, Mahajan House, El, N.D.S.E. Part Ii, New Delhi but he declined to make any payment on behalf of the defendant in respect of the said Hundis on the ground he had no money to pay and honour the same. 'The Notary Public certified the dishonour through protest. The total consideration of the hundis works out to Rs. 89.700.00 and the plaintiff has claimed, apart from that amount, Rs. 12,238.00 by way of interest calculated at the rate of 6 per cent on the amount covered by each hundi from the due date and filed the suit, as already stated, for Rs. l,01,938.00 .

(7) The defendant firm has submitted an application for leave to defend the suit under Rules 2 and 3 of Order xxxvii of the Civil Procedure Code. It has been urged by the defendant that the hundis in suit were without consideration and there is, thereforee, a triable issue involving substantial questions of law and fact. The plaintiff has taken a preliminary objection i.e. the bar of limitation against the entertainment of the aforesaid application. The issue bearing on the point reads 'Whether the defendants were served on 24th April, 1976 and the application for leave to defend filed on 18th May, 1976 is, thereforee, time barred ?'

(8) The evidence adduced by the parties on the issue is confined to their own affidavits.

(9) The plaintiff had specified in the plaint three addresses for the service of the defendant : 1. M/s. Shyam Kamal Agencies, 426, 1st Floor, Katra Choban, Chandni Chowk, Delhi. 2. Through Shyam Kishore Tandon, 177/392, Mumford Ganj, Allahabad (U.P.). 3. Shyam Kishore Tandon, Modella Show Room, E-l, N.D.S.E. Part Ii, Mahajan House, New Delhi. The Court ordered the suit to be registered and summonses to be issued to the defendant in form No. 4 Appendix B of the Code of Civil Procedure. The summonses went to all the three addresses given by the plaintiff. The one meant to be served at Modella Show Room was tendered to Shyam Kishore on 24th April, 1976 but he refused to accept it and acknowledge service. In consequence the process server, Raj Pal Singh, affixed a copy of the summons on a conspicuous part of the premises and the report made by him in this behalf was attested by on,e Hatinder Singh as well as the plaintiff Tek Chand Madan. The summons designed to reach the defendant at Katra Choban address could not be served at that place on 23-4-1976. The process server, Jagdish Chand, was told on 27-4-1976 that he should contact Shyam Kishore Tandon at Modella Show Room in New Delhi South Extension, Part II. He went to Modella Show Room on 28th April, 1976 and offered a copy of the Summons to Shyam Kishore Tandon. Shyam Kishore went through the contents of the summons and then declined to have it. The process server, consequently, affixed a copy of the summons on the door of the Show Room and made a report in this behalf. His report was attested by Hukam Singh, a resident of the locality. The summons which was taken to the Allahabad address was returned unserved because Shyam Kishore was stated to have gone out of station on personal business.

(10) When the case was put up before Yogeshwar Dayal J. on 17th May, 1976 the summons served by affixation on 28th April, 1976 was brought to his notice and he adjourned the matter to 19th May, 1976 because there was still time for filing an application for leave to defend the suit. The summons which was served on 24th April, 1976 escaped the attention of the Court somehow at that time. Shyam Kishore was served on 24th April, 1976 just like he was. served on 28th April, 1976 i.e. by affixation, of the summons in the manner provided by Rule 17 of Order V Civil Procedure Code . 'on his refusal to accept the same. The mode of service adopted by the process server was in accordance with the law on the subject and constituted valid service. Yogeshwar Dayal J. noted in his aforesaid order on 17th May, 1976 that the service was effected on 28-4-1976 but that was because service of the summons on 24th April, 1976 was not brought to his notice. The fact that he was duly served on 24th April, 1976 was within the knowledge of Shyam Kishore and the Court's remaining in the dark about the same on 17-5-1976 could in no Manner obviate or mitigate the consequences of that service. It was incumbent on the defendant to submit its application for leave to defend the suit within 20 days of the service of the notice vide Chapter Xv, Rule 2 of Delhi High Court (Original Side) Rules, 1967. The application under consideration was preferred beyond the prescribed period of limitation on 18-5-1976.

(11) The correctness of the report of the process server that a copy of the summons was tendered to Shyam Kishore Tandon at Modella House on 24-4-1976 but he refused to accept the summons and acknowledge service and the service was thereforee effected by affixation has not been challenged by the defendants. Its learned counsel has urged that the name of ShyarnKishore Tandon was nowhere mentioned in the summons sought to be served on him on 24-4-1976 and he was, thereforee, fully justified in refusing to accept it. It is provided, however, by rule 3 of Order Xxx of the Code of Civil Procedure that where persons are sued as partners in the name of their firm, the summons shall be served either (a) upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct, and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India. The present suit has been instituted in the name of the firm and the summons addressed to the firm could, thereforee, be served upon Shyam Kishore Tandon who is admittedly one of its partners. It was not necessary to mention his name in the summons, he very much knew his relationship with the firm to which the same was addressed. The process server was, thereforee, acting well within the scope of Rule 17 of Order V when he tendered the summons to Shyam Kishore, a partner of the defendant firm, and again when he affixed a copy of the summons at the relevant place on the refusal of Shyam Kishore to accept the same and acknowledge the service.

(12) It has been stated in the counter-affidavit of S.K. Tandon dated 27th September, 1976 that there was no valid service effected on the defendant on 24-4-1976 and the only reason turn terming the said service as invalid advanced by him is that the office of the defendant firm is at Katra Choban, Chandni Chowk with its head office at Allahabad and not at ModellA Show Room, South Extension, New Delhi. Shrimati Sheil Sethi, the defendant's counsel, has contended that Modella Show Room was no place for affixture, it should have been done at the business premises of the defendant or the residential house of Shyam Kishore Tandon. As we have seen Rule 3 of Order Xxx provides two ways for effecting service in a case where persons have .been sued as partners in the name of their firm i.e. the summons can be served either upon one or more of the partners or at the principal place at which the partnership business is carried on. In this case the second alternative was also tried but the effort did not bear fruit. As per the first method the summons could be served upon one of the partners and that was done. Rule 17 of Order V requires the serving officer to .affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. Tek Chand Madan, plaintiff, has sworn to the fact that at the relevant time Shyam Kishore Tandon was working for gain at Modella Show Room and this fact has not been controverter by the defendant.

(13) It is, thus, plain that the defendant was served with the summons issued in the suit as per directions of the Court on 24-4-1976 and the application submitted on its behalf for leave to defend the suit was filed on 18-5-1976, definitely more than 20 days after the service of the summons. The application is, thus, barred by time. It is laid down by Section 3 of the Limitation Act, 1963 that 'Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defense'. It means the Court is duty bound to dismiss the application because of its being statute barred even if no objection in this account is raised by the plaintiff. The failure of the plaintiff to invite the attention of the Court on 17-5-1976 to the fact that the defendant had been served on 24-4-1976 as well, and not only on 28-4-1976, for the reason the plaintiff in whose presence the said service had been effected was not personally present to brief his advocate on the point or otherwise, would not provide an excuse to the Court to over-look the service on 24-4-1976.

(14) The defendant's counsel has relied on Manicka Goundan v. Krishna Goundan A.I.R. 1949 Mad 396 but that case is not relevant because there although the summons had not been returned by the date fixed, the Judge declared the same to have been duly served and proceeded to pass an ex-parte decree in favor of the plaintiff. Another case cited is Tripura Modern Bank Ltd. v. Bansen and Co. : AIR1952Cal781 . The facts of that case also are different because none of the three defendants on which the service had to be effected could be contacted for personal service. The third case quoted by the defendant's counsel is The Punjab Oil Expellers Co. v. Madan Lal Nanda, & Sons : AIR1967Delhi28 where I.D. Dua, J. (as his Lordship then was) said in the course of the judgment that the matter of service is of primary importance as it is one of the fundamental rules of our law of procedure that parties should have a fair and reasonable notice of legal proceedings against them which they are entitled to defend. It was also observed that for the purpose of ensuring that every effort is made to effect personal service the Court has a duty to pay personal attention to matters connected with the issue 'and service of processes and it may well be considered a dereliction of duty to leave this important function exclusively to the ministerial staff of the Court. I have examined the record bearing on the service of the defendant thoroughly and there is no question of the matter of service being left exclusively to the office of the High Court. Moreover the defendant was approached with the summons personally in this case, and the official entrusted with the duty of its service could do no better None of the precedents referred to by the defendant's learned counsel will thus help its cause.

(15) For the reasons foregoing, the defendant's application for leave to defend the suit is dismissed. There shall, however, be no order as to costs.


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