Service Of Summons Mandatory, Not Dispensed With Party Entering Appearance By Filing Vakalatnama

The Bombay High Court in Sunil Gupta and Ors. v. Asset Reconstruction Company (India) Ltd. and Ors.  observed that serving of summons is a mandatory procedural requirement in a debt recovery application, the Bombay High Court held that the appearance of an Advocate and filing of a Vakalatnama does not do away with the requirement to serve the summons.

After hearing the exhaustive arguments of all the stakeholders, the Court observed that it was clear that the Petitioners were not served any notice/summons. It was also categorically observed that the burden of proof to establish that petitioners had been served with summons is on IOB/respondent no.1 and petitioners should not be asked to prove a negative averment. The ruling in the case of  New India Assurance Company Ltd. v/s. Nusli Neville Wadia & Anr was also referred to by the Court, in which the top court held thus:- 

“55. Although the provisions of the Evidence Act are not applicable, the underlying principles of Section 101 thereof would apply. In Sarkar on Law of Evidence 16th Edition Volume 2 at pg. 1584 it is stated as under :

Principle and Scope - This section is based on the rule, ie incumbit probation qui dicit, non qui negat the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reasons. [per LORD MAUGHAM in Constantine Line vs. I S Corpn. (1941) 2 All ER 165, 179]. This rule is derived from the Roman law, and is supportable not only upon the ground of fairness, but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative [Hals 3rd Ed Vol 15 para 488].”