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Smt. Kalsum Banoo Vs. Gautam Asbestos Cement Products and 2 ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc Appeal No. 82 of 1975
Judge
Reported in1975WLN(UC)408
AppellantSmt. Kalsum Banoo
RespondentGautam Asbestos Cement Products and 2 ors.
DispositionAppeal allowed
Cases ReferredCh. Sarafuzzaman v. State of Uttar Pradesh and Ors.
Excerpt:
.....chandmal in his report makes this fact doubtful that the summons was actually delivered to smt. kalsum banoo in the presence of amarchand and chandmal whose names do find place on the corner of the back of the summons.;under the alleged signatures of amarchand and chandmal 2-2-74 is no doubt written but from that writing no presumption can be raised about the date of the delivery unless the fact was incorporated by the report of the serving officer.;(b) arbitration act, 1940 - section 33 and limitation act, 1963--article 3, 119--date & time of service of summons not mentioned by the serving officer--held, application under section 33 was not barred. - - rule 18. the serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause..........act on 8th january, 1974. a notice under sub-section (2) of section 14 was then issued to smt. kalsum banoo by the court which according to the respondent was served on smt. kalsum banoo appellant on 2nd february, 1974. the counsel of the appellant then put in his appearance on behalf of the appellant before the district judge on 15th february, 1974 which was a date fixed for hearing in the matter. he prayed for some time to file the objections on behalf of the appellant. an application under section 33 of the act was actually filed before the court on behalf of the appellant smt. kalsum binoo on 6th march, 1974. an objection was taken on behalf of the respondents m/s gautam asbestos cement products, beawar that the application under section 33 filed by smt. kalsum banoo was barred.....
Judgment:

V.P. Tyagi, J.

1. This appeal of Smt. Kalsum Banoo directed against the judgment and the decree of the Additional District Judge, Ajmer is dated 24th January, 1975 rejecting the appellant's application alleged to have made under Section 33 of the Arbitration Act of 1940.

2. The facts giving rise to this litigation may be summarised in a nut-shell as follows: Mr. P.P. Gandhi is alleged to have been appointed by an agreement between the appellant and the respondents as arbitrator us adjudicate the dispute between the parties. It is alleged that Shri Gandhi give his award. The award was then filed in the court of the District judge, Ajmer under Section 14 of the Arbitration Act on 8th January, 1974. A notice under Sub-section (2) of Section 14 was then issued to Smt. Kalsum Banoo by the court which according to the respondent was served on Smt. Kalsum Banoo appellant on 2nd February, 1974. The counsel of the appellant then put in his appearance on behalf of the appellant before the District judge on 15th February, 1974 which was a date fixed for hearing in the matter. He prayed for some time to file the objections on behalf of the appellant. An application under Section 33 of the Act was actually filed before the court on behalf of the appellant Smt. Kalsum Binoo on 6th March, 1974. An objection was taken on behalf of the respondents M/s Gautam Asbestos Cement Products, Beawar that the application under Section 33 filed by Smt. Kalsum Banoo was barred by time An issue was framed and the learned Judge after hearing both the parties held that the summons was served on Smt. Kalsum Banoo on 2nd February, 1974. The application under Section 33 was filed on 6th March, 1974 which was undoubtedly beyond 30 days. Article 119(b) of the Limitation Act of 1963 prescribes a period of 30 days for filing objections to the award filed before the court under Section 14 of the Act. The finding of the court below in this case is that the application filed by Smt. Kalsum Banoo under Section 33 could be submitted by her within 30 cays from the date of the service of the summons on her and since it waa male beyond 30 days it was barred by time On this ground the application of Smt. Kalsum Banoo was rejected. It is against this judgment of the learned Additional District Judge that the present appeal has been preferred by the appellant.

3. Learned Counsel for the appellant tried to show that Smt. Kalsum Banoo under the circumstances of this case was not at all served and, therefore, the court below has erred in computing the period of limitation from 2nd February, 1974 which in the opinion of the court was the date of service of summons on Smt Kalsum Banoo. But that submission of Mr. Mardia cannot be entertained in view of the admission of the learned Counsel himself in the memo of appeal wherein it has been admitted that the service was effected on Smt. Kalsum Banoo on 5th February, 1974. The only argument which now remains to be decided by this Court is whether in view of the report made by the serving officer Moti Lal can the court hold that the service was effected on on Smt. Kalsum Banoo on 2nd February, 1974 The report of Motilal on the back of the summon which he filed after effecting the service, reads as follows:

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eS eksrhyky etwdjh dk c;ku gS fd Jherh dylwe ckuw ,LosDVksu lhesaV ikbi bUMLVht ns yookM+k ekxZ dh uqdM ij dkj[kkus es ekStwn feyh mldks leu ds okLrs dgk rks Jh erh dylwe ckuw us leu o udy ys fy;k nLr[kr djus ls budkj gks xbZ ftldh rgjhj ekSds ij xokgku ls djk yh x;h A fygktk fjiksZV is'k gS A

n0 eksrh yky

rk- 5&2&75 bZ-

4. At the fag end of this page we find the following language inscribed on this documents:

^^ eqlEeks dylwe ekStwn feyh lEeu o udy ys fy;k nLr[kr djus ls budkj gqbZ An0 pkaney n0 vejpUnrk- 2&2&74 rk- 2&2&74^^

5. On the basis of this language on the back of the summons the learned Judge came to the conclusion that that the summons was served on Smt. Kalsum Banoo on 2nd February, 1974.

6. It is vehemently urged by Mr Mardia that the report of Motilal is silent about the date and time of the service of summons which according to the provisions of Order 5 Rule 10 CPC it was incumbent on the process server to mention while returning the original summons to the court with his report. He also contended that no doubt February 2, 1974 has been written under the signatures of Amar Chand and Chandmal but no proof has been led by the respondents to show that these were the witnesses before whom the summons was delivered to Smt. Kalsum Banoo. The report of Motilal is silent about the names and addresses of the witnesses before whom the service was effected and, therefore, according to Mr. Mardia it has become all the more necessary for the respondents to show that actually the summons was served on Smt. Kalsum Banoo in the presence of Amarchand and Chandmal by Motilal on 2nd February, 1974. In the absence of any evidence on the court below should not have therefore held that the summons was delivered to Smt. Kalsum Banoo 2nd February, 1974.

7. In view of the admission by the appellant that the summons was served on Smt. Kalsum Banoo on 5th February, 1974 it is not disputed now that the service was effected in the manner prescribed by Rule 16 of Order 5 C.P.C. Learned Counsel appearing on behalf of the. respondents candidly admitted before me that in his opinion the report on the back of the summons was made by Motilal under Rule 18 of Order 5 CPC because in the present case the service was effected on the appellant in accordance with the provisions of Rule 16 of Order 5 CPC.

Rule 18. The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons

8. Under this provision of law it is incumbent on the serving officer to mention while submitting a report, the time and the manner in which the summons was served. He should also mention the names and addresses of the persons identifying the persons and witnessing the delivery or the tendering of the summons. The report made by Motilal suffers from the defect that it does not faithfully comply with the requirements of Rule 18.

9. The question is whether the requirement of Rule 18 is mandatory and the non compliance there of vitiates the service of summons. In this connection myattention has been drawn to a Supreme Court authority in Commissioner of Income-tax, West Bengal III, and Ors. v. Hemendra Nath Ghosh : [1971]82ITR888(SC) . In that case the Inspector of Income-tax who was entrusted with the task of serving a notice under Section 33B of Income tax Act, 1922, reported that he had served a notice by affixing it on the assessee's place of business but in his report he did not mention the names and addresses of the persons who identified the place of business of the assessee nor did he mention in his report or in the affidavit that he personally knew the place of business of the assessee. The assessees however claimed that they had already closed their business long before the notices were issued. On writ petition filed before High Court it was held that in the circumstances of that case non mentioning of the place and the names of persons who identified the place of business vitiated the service and it could not be said that a proper service was effected on the assessee. The Supreme Court while affirming the decision of the High Court also held that the notices were not served in accordance with the provisions of the law and, therefore, it could not be said that the assessee had been given a proper opportunity. In was also observed by their Lordships of the Supreme Court that the question whether the assessees had been served in accordance with the law, was essentially a question of fact. In a Allahabad Case reported in Ch. Sarafuzzaman v. State of Uttar Pradesh and Ors. 1969 ILR (1) All 585 the learned Judges held that the non mentioning of the place in the endorsement made by the process server whether the notices were actually affixed and the comes of those who identified the house, made the service doubtful.

10. The language of Rule 18 of Order 5 C.P.C. enjoins a duty on the serving officer to clearly mention the time when the service was effected, the manner in which the summons were served and the names and addresses of the persons if any who identified the person served and witnessed the delivery or tender of the summons. This provision has been enacted by the legislature with a view to ensure that service has been properly effected and that it was done in accordance with the provision of the law. In the present case it is no doubt admitted that Smt. Kalsum Banoo was served with a summons issued by the court but the question is whether the service was effected on 2nd February, 1974 as indicated by the so called witnesses who had appended their signatures on the summons or she was served on 5th February as admitted by the appellant. Neither Moti Lal nor Amar Chard and Chandmal were examined as witnesses to prove the time when the service was effected. The expression 'time' includes within its import the date also. It was, therefore, necessary before holding that the application of Smt. Kalsum Banoo was beyord the period of limitation, to find out on the basis of the definite data admissible in evidence that the service was actually effected on 2nd February, 1974. Mr. Mardia is, correct when he says that from the report of Motilal the process server it cannot be ascertained whether the service was effected in the presence of Amarchand and Chanimal who seem to have put their signatures on the summons as witnesses. In my opinion the lacuna left by Motilal by not mentioning the time, & date of service, the names & addresses of Amarchand and Chandmal in, his report, makes, this fact doubtful that the summons was actually delivered to Smt. Kalsum Banoo in the presence of Amarchahd and Chandmal whose names, do find place on the corner of the back of the 'summons. Similarly it is difficult to. hold that the service was affected on February 2, 1974 because the report of Motilal is silent about the date of delivery. Under the alleged signatures of Amarchand and Chandmal 2.2.74 is no doubt written, but from that, writing no presumption can be raised about the date of the delivery unless the, fact was incorporated in the import of the serving officer In these circumstances the finding of the court below that the service was effected on 2nd February, 1974, cannot be upheld and on that basis it cannot be said that the application of Smt. Kalsum Banoo under Section 33 of the, Act was barred by time.

11. Mr. Mardia raised, another objection before this Curt which does not fall under the issue decided by the court below and that objection is that for filing an application under Section 33 of the Arbitration Act the period of limitation prescribed under Article 137 of the Limitation Act is 3 years and not 30 days. This, question was never agitated before the Court below and therefore, I need not go into the merits of this objection at this stage. Since I am of the opinion that the case should be remanded to the original court to find out whether the service, on Smt. Kalsum. Banoo was effected on 2nd February, 1974 a direction is also issued that if an objection is properly raised by Smt. Kalsum Banoo, about the application of Article 137 of the Limitation Act then it may also be decided by the lower court.

12. In this view of the, matter, the appeal is allowed. The judgment of the court below is set aside and the case is sent back to the file of the Additional District Judge, Ajmer with a direction that the issue regarding Limitation may be decided after allowing the parties to adduce their evidence. I would also like to direct the court below that all the issues be decided so that case may not come in piecemeal before this Court. The parties shall bear their own costs.

13. Both the parties shall appear before the Additional District Judge, Ajmer on 8th October, 1975.


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