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Srikant JaIn Vs. B.K. Plastic Industries - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberInsolvency Case No. 16 of 1983
Judge
Reported inAIR1986Cal29
ActsPresidency-towns Insolvency Act, 1909 - Sections 10, 11 and 13; ;General Clauses Act, 1897 - Section 27; ;Evidence Act, 1872 - Section 114
AppellantSrikant Jain
RespondentB.K. Plastic Industries
Excerpt:
- .....creditor submitted that in view of such endorsement of refusal this court would consider the service by registered post as good and valid service. the learned lawyer also referred to a division bench judgment of this high court reported in : air1958cal251 where it was held that as soon as it is proved that the letter was properly addressed prepaid and posted by registered post, service shall, under section 27 of the general clauses act, be deemed to be duly effected. where such registered post is returned with the endorsement 'refused', two presumptions arise. one is the presumption under section 114(f) of the evidence act whereunder the court is entitled to presume that the common course of business has been followed in the particular case and as soon as the court presumes that.....
Judgment:

1. This application had been taken out by M/s. B. K. Plastic Industries against Srikant Jain, carrying on business and also having a dwelling house at No. 33 Burtola Street, Calcutta-7.

2. It is the case of the petitioning creditor that within the year next preceding the presentation of the petition, the debtor Srikanl Jain had and still has a dwelling house at No. 33 Burtola Street, Calcutta. By an order dt. 22nd Sept., 1976 passed in suit No. 397 of 1976 between M/s. B. K. Plastic Industries and B. K. Plastics Pvt. Ltd. & others, the matters in dispute between the parties were referred to arbitration of Mr. A. C. Bhabra. The Arbitrator delivered his Award in writing on 3rd Oct., 1977. This High Court was pleased to pass a judgment upon Award on 13th Jan., 1978 and directed the defendants M/s. B. K. Plastics Pvt. Ltd., Srikant Jain and Chandrakant Jain to pay to the plaintiff the amounts payable under the said Award and also to pay the costs of obtaining the said Award. The defendants were also directed to deliver certain machinery and moulds and other articles, the default whereof, they were directed to pay the value for the same. In view of non-compliance by the debtors in delivering the goods, the petitioning creditor became entitled to a sum of Rs. 9,94,345/-. The decree ultimately became a decree for payment of money and became final. A notice was served on 5th May, 1983 calling upon the debtor to pay the aforesaid sum or to furnish security for the same to the satisfaction of the creditors within a period of one month from the date of service of the said Notice. The said Notice was served upon the debtor both by registered post with acknowledgment due and also under certificate of posting at No. 33 Burtola Street. Calcutta address as also at premises No. 5, Gul Mohar Park, New Delhi address. The registered cover addressed to New Delhi came back with the endorsement 'Refused' on presentation by the postal authorities on the 17th May, 1983. The registered cover addressed to the debtor at its No. 33 Burtola Street. Calcutta address was re-directed to No. B/5 Gul Mohar Park, New Delhi and the same also shows that the debtor refused to accept delivery when it was presented to him by the Postal Authorities on the 17th May, 1983. .

3. The learned lawyer appearing on behalf of the petitioning creditor submitted that in view of such endorsement of refusal this Court would consider the service by registered post as good and valid service. The learned lawyer also referred to a Division Bench judgment of this High Court reported in : AIR1958Cal251 where it was held that as soon as it is proved that the letter was properly addressed prepaid and posted by registered post, service shall, under Section 27 of the General Clauses Act, be deemed to be duly effected. Where such registered post is returned with the endorsement 'Refused', two presumptions arise. One is the presumption under Section 114(f) of the Evidence Act whereunder the Court is entitled to presume that the common course of business has been followed in the particular case and as soon as the Court presumes that common course of business had been followed, it is entitled to hold that the Postal Peon did go to the addressee and the return of the cover was due to one of the two reasons either that the man was not found or that though he was found he had refused. Under these circumstances the Court is entitled to hold, unless the contrary is proved that the endorsement 'Refused' was made by the peon himself, that it was correctly made. Applying the same principles, in the instant case although the debtor had taken the point that he had not been regularly served but at the time of hearing of this application nobody appeared on behalf of the debtor to substantiate such claim. Mr. B. K. Chatterjee also relied on a case reported in . So far as where there had been a regular service at the last address of the debtor is concerned, Mr. Chatterjee relied on a case reported in AIR 1930 Mad 544, where it was held by a Division Bench of the Madras High Court that it was sufficient for the requirement of Section 11(b) of the Presidency Towns Insolvency Act that the debtor has had a dwelling house within the High Court's original jurisdiction limits, available for his occupation as a dwelling house, should he choose to dwell there, although he has ordinarily resided elsewhere and has not actually dwelt in the house within the year previous to the presentation of the insolvency petition. In the instant case it was the case of the petitioning creditor that at No. 33 Burtola Street premises the said debtor Srikant Jain not only resided but had also all opportunity to go and reside there inasmuch as that was the part of his coparcenury property. In spite of service of such insolvency Notice the debtor has neither paid the dues of the creditor nor has furnished the security for payment thereof to the satisfaction of the creditor, nor the debtor has taken out any application under Section 9(5) of the Act within the specified period. Under the circumstances the petitioner submitted that the petitioner is entitled to have an order of Insolvency passed against the debtor in view of the various acts of Insolvency committed by him, more so for non-compliance with the Insolvency Notice and for not taking out an application as indicated earlier. Lastly, Mr. Chatterjee submitted that although the decree has been passed against more than one debtor, the creditor was entitled to execute the decree either jointly or severally against each and every debtor.

4. Under the circumstances, being satisfied with the submissions made on behalf of the petitioning creditor, this Court passes an order as prayed for.

5. Costs of this application would be added to the claim of the petitioning creditor.


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