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ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 168 OF 2022
Forest Realty .. Applicant/Plaintiff
Vs.
Taksha Spaces Pvt Ltd. & Ors. .. Defendants
Vyom Shah a/w Kinnar Shah i/b Divya Shah Associate for Plaintiff.
Mr. Punit Damodar, Ms. Nikita Vardhan & Mr. Vishal Tiwari and Ms.Nidhi
Pathak i/b Kanga & Company for ICICI Bank.
Mr. Paresh Shah i/b M/s. Shah & Sanghvi for Defendant No.2.
JUDGMENT
1. The above matter has been placed on board for directions in the light of the order passed by the learned Prothonotary and Senior Master dated 17th October, 2022. By the said order the Plaintiff was directed to take steps to re-serve Defendant Nos.[1] and 3 with the writ of summons and file a affidavit-of-service, failing which the Suit against these Defendants would be dismissed for non-compliance of Rule 87 of the Bombay High Court (Original Side) Rules, 1980.
2. The learned advocate appearing on behalf of the Plaintiff submitted that considering (i) a Vakalatnama is already filed on behalf of Defendant Nos. 1 and 3 and (ii) the Writ of Summons that was served on Defendant Nos. 1 and 3 was returned with the remarks “unclaimed-return to sender”, the Prothonotary and Senior Master was incorrect in directing the plaintiff to re-serve the writ of summons on Defendant Nos. 1 and 3. In these circumstances, the learned Advocate submitted that service of the writ of summons have been duly effected on Defendant Nos. 1 and 3 and the directions passed by the Prothonotary and Senior Master be set aside.
3. To substantiate his arguments, the learned Advocate appearing on behalf of the Plaintiff, relied upon Rule 84 of the Bombay High Court (Original Side) Rules, 1980 and a judgment of a Division Bench of this Court in the case of Meena Ramesh Lulla and Ors. Vs Omprakash Alreja and Ors. (Appeal No.616 of 2011 WITH Notice of Motion No.2813 of 2011 IN Notice of Motion No. 1819 of 2011 IN Suit NO. 4577 of 2000 decided on 21st September, 2011). The learned counsel also relied upon a decision of another learned Single Judge in the case of Crown Worldwide Holdings Ltd & Ors. VS Crown Relocations Movers and Packers (2016 SCC OnLine Bom 15503) to contend that when a packet is returned with the remarks “unclaimed” the same amounts good service.
4. I have heard the learned Advocate appearing on behalf of the Plaintiff. It is not in dispute that a Vakalatnama has been filed on behalf of Defendant Nos. 1 and 3. The same is on record. Rule 84 of the Bombay High Court (Original Side) Rules, 1980 inter alia stipulates that a service of a summons to appear and answer shall be proved by the vakalatnama having been filed, or when no vakalatnama has been filed, by evidence showing that the summons was served in the manner provided by the Code of Civil Procedure, 1908. Rule 84 of Bombay High Court (Original Side) Rules, 1980 reads thus: “Rule.84. Proof of service of Summons- Unless the Court shall otherwise order, the service of a Summons to appear and answer shall be proved by the vakalatnama having been filed or when no vakalatnama has been filed, by evidence showing that the Summons was served in the manner provided by the Code of Civil Procedure. Such proof shall ordinarily be by the affidavit of the bailiff and (as to such matters as the bailiff cannot speak to of his knowledge) of the person who attended the bailiff for the purpose of identification at the time of service, or of such other person or persons as can speak to the identity of the person served or to other matters necessary to be proved in respect of the service.” (emphasis supplied)
5. On a plain reading of Rule 84, it would appear that the service of the summons to appear and answer, can be proved by the fact that a vakalatnama has been filed on behalf of the Defendant. In the present case, a vakalatnama has been filed on behalf of Defendant Nos. 1 and 3. In these circumstances, the service of the writ of summons is duly proved as contemplated in Rule 84, and therefore there is no requirement for the Plaintiff to re-serve the writ of summons on Defendant No. 1 and
6. In the view that I have taken, I am supported by a decision of a Division Bench of this Court in the case of Meena Ramesh Lulla & Ors (supra). In the said decision, the Division Bench has inter alia held that the evidence of the vakalatnama of an advocate of the Defendant, itself would show service of the summons upon the Defendant. Paragraph Nos. 11, 12 & 13 of this decision read thus: “11. It may be mentioned that Rule 84 of the Bombay High Court (Original Side) Rules also show the circumstances in which a writ of summons is seen to be served. Rule 84 runs thus: “R.84. Proof of service of Summons. – Unless the Court shall otherwise order, the service of a Summons to appear and answer shall be proved by the vakalatnama having been filed or when no vakalatnama has been filed, by evidence showing that the Summons was served in the manner provided by the Code of Civil Procedure...…”
12. The evidence of the vakalatnama of the Advocate of the Defendant itself would, therefore, show service of the summons upon the Defendant. The appearance by the Defendant at any stage of the suit is further such evidence. Filing of the affidavit in reply in an interim application is also such evidence. Consequently, when a suit comes up for hearing it would be material to see whether the writ of summons is actually served which can be evidenced by an affidavit of service, failing which it would be seen by the Vakalatnama of the Defendants’ Advocate, the appearance of the Defendant, or any other proceeding filed or taken by the Defendant in the suit. Once any of these is shown the formal service of the writ of service cannot be insisted upon.
13. A similar aspect came up for consideration before another single Judge of this Court in the case of Vijaykumar Ramrang Chaudhary Vs. D.K. Soonawalla & another 2005(5) Bom.C.R. 842, in which the Court had to consider the allegation about non-service of the summons after the Defendant appeared, but had not filed his written statement. The Defendant applied for listing the suit for dismissal on the technical ground of non-service. The Defendant had appeared and had filed an application for time to file written statement. Ad-interim relief was granted to the Plaintiff. The Defendant had engaged 3 Advocates on record. His contention that the Advocates were represented only for the specific application in which they appeared was negatived on the premise that there is no provision in the CPC or the High Court Rules for engaging an Advocate in respect of each separate interim proceedings. It was held that Rule 84 of the above Rules is itself sufficient to show that the summons were duly served or that the requirements stood dispensed with. This was in keeping with the purpose and object of the formality of service.” (emphasis supplied)
7. Considering Rule 84 as well as the decision of the Division Bench in the case of Meena Ramesh Lulla & Ors (supra), I am satisfied that there is no requirement for the Plaintiff to re-serve the writ of summons on Defendant Nos. 1 and 3.
8. This apart, in the facts of the present case, the writ of summons served on Defendant Nos. 1 and 3 was returned with the remark “unclaimed-Return to Sender.” In this regard, a learned Single Judge of this Court (G.S. Patel J.) in the case of Crown Worldwide Holdings Ltd & Ors. Vs Crown Relocations Movers and Packers (supra), has clearly held that when the packet is returned with the remarks “unclaimed”, the same amounts to good service. Paragraph Nos. 4 and 5 of this decision read thus: “4. In any case, there is a well-established presumption that the return of packet with the endorsement “unclaimed” is good service. Obviously, this means that an intimation of the packet was left with the Defendant at Navi Mumbai address and the Defendant was required to claim that packet. This is settled by a long line of authority on an interpretation of Section 27 of the General Clauses Act and Section 114 of the Evidence Act. See the authorities noted.[1] In a matter under the Companies Act, 1956, where service of a statutory notice is mandatory, a similar issue arose: In Re: Ispat Industries Ltd.[2] After reviewing the case law, S.J. Vazifdar
14. The Supreme Court thereafter went on to hold that a notice which is returned as unclaimed but which was despatched in the manner prescribed with the correct address on it is deemed to have been served.
15. The judgment would apply to a notice under Section 434(a)(1) of the Companies Act with greater force. Section 138 of the Negotiable Instruments Act entails criminal consequences, whereas Section 434(1)(a) involves only civil consequences. Moreover the requirements of a notice under Section 138 of the Negotiable Instruments Act are stricter and wider. Despite the same, the Supreme Court held that a person who properly addresses a notice and mails it would be deemed to have fulfilled his obligation of sending the notice even if the same is returned unclaimed. On a parity of reasoning, it must be held that a notice though returned unclaimed, if duly mailed by registered post addressed to the registered office of the company, must be deemed to have been “delivered” within the meaning of that expression in
1 Datta S. Nadkarni v. Salvador Fernandes, 2016 All MR (Cri) 3002; Dayanand L. Naik v. Vasco Urban Co-Operative Credit Society Ltd., 2016 (4) All MR 860; Jenjon Retail and Services Pvt. Ltd. v. Lavasa Corporation Ltd., Arbitration Petition No. 1422 of 2015, decided on 22nd June 2016, per R.D. Dhanuka J.; Harcharan Singh v. Smt. Shivrani, [1981] 2 SCR 962; Madan & Co. v. Wazir Jaivir Chand, AIR 1989 SC 630; Shri. David KN v. Shri. SR. Chaubey (Chaturvedi), 2003 (4) Bom CR 612; Deelip Apte v. Nilesh P. Salgaonkar, 2006 (6) Bom CR 653; Indira Rani Ugrasen v. Vijaya B. Desai, Civil Revision Application No. 139 of 2007, decided on 7th August 2015, per M.S. Sonak J., which contains a very instructive review of the case law. 2 2005 (2) Bom CR 94 Section 434(1)(a) of the Companies Act.
16. I would come to this conclusion even or principle. Any other view would permit a dishonest company to avoid service of a notice in a variety of ways by refusing to claim the same from the postal authorities despite intimation of the delivery thereof. Take a simple example. Companies are known to have their registered office in premises where they do not carry on any significant manufacturing, trading or administrative activities. The premises are used as a registered office only for the purpose of convenience and for complying with statutory provisions. In such a case, the company could well avoid service of notices and then refuse to claim the same despite notification from the postal authority to do so. (Emphasis added)
5. This is also the view of R.D. Dhanuka J. in Jenjon Retail and Services Pvt. Ltd. v. Lavasa Corporation Ltd.[3]
26. In my view, if the submission of the learned counsel for the petitioner that till service of signed copy of the arbitral award from the learned arbitrator is actually received by the petitioner though it was not claimed by the petitioner inspite of intimation posted by the postman, it will not amount to delivery of the award under Section 31(5) of the Arbitration Act is accepted, dishonest litigant who deliberately does not claim copy of the signed award sent by the learned arbitrator inspite of the postman having posted the intimation, the limitation would never commence for filing a petition under Section 34(3) of the Arbitration Act and the beneficiary of the award would never be able to apply for execution of such award. The arguments of the learned counsel for the petitioner, in my view, is ex facie contrary to the principles laid down by the Supreme Court in the case of C.C. Alavi Haji (supra) and judgment of the Calcutta High Court in the case of New Globe Transport Corporation (supra), contrary to Section 3 of the Arbitration and Conciliation Act, 1996, Section 27 of the General Clauses Act, 1897 and also to the provisions of
3 Supra. A contrary view expressed by a learned single Judge in 2012 in Shree Varun Trading Co. v. Mahesh Associates, (2012) 5 All MR 51 does not appear to have considered the earlier decisions of the Supreme Court and of the High Court, including the decision of Vazifdar J. in Ispat Industries, which was of 2005. A more recent decision by another learned single Judge in Ganpatraj K. Sanghvi v. Vishal Udyog, Notice of Motion No. 1683 of 2015 in Summary Suit No. 454 of 2012, decided on 23rd June 2016 is distinguishable because it seems that the attempt there was to leave the packet at an address never used by the defendant. The matter seems to have turned on this narrow issue and the previous law does not seem to have been brought to the notice of the court. Section 31(5) of the Arbitration Act, 1996.
27 In my view, unclaimed service amounts to a good service and amounts to refusal to accept the delivery of the arbitral award which was sent by the learned arbitrator at the correct address and the intimation was posted by the postman to the petitioner. In my view, the limitation for filing of the arbitration petition under Section 34(3) of the Arbitration Act would commence from the date on which the intimation was posted by the postman and the same was not collected by the petitioner from the post office. Admittedly, the intimation was posted in this case by the postman on 21st July 2014 and 22nd July 2014 whereas the the petitioner has lodged the arbitration petition only on 22nd June 2015. The petition thus having been filed after expiry of three months from the date of deemed delivery of such award, the petition in my view is barred by law of limitation prescribed under Section 34(3) of the Arbitration Act. (Emphasis added)”
9. In view of the foregoing discussion, I am satisfied that Defendant Nos. 1 and 3 have been duly served with the writ of summons in the above Suit and there is no requirement for the Plaintiff to take steps to re-serve Defendant Nos. 1 and 3.
10. This order will be Secretary/Personal Assistant of this Court. All concerned will act on ( B. P. COLABAWALLA, J. )