S.V. Enterprises v. Welkin Auto Pvt. Ltd.

Ashis Kumar Chakraborty, J.:— This is an application, at the instance of the defendant in the suit, under Order IX Rule 13 of the Code of Civil Procedure (in short, “the Code”) for recalling of an ex-parte decree dated May 06, 1998 passed by a learned Single Judge of this Court in the suit, C.S. No. 269 of 1993 (hereinafter referred to as “the suit”). The petitioner, the defendant/judgment debtor is a company incorporated under the Companies Act, 1956. The plaintiff/decree holder, the respondent herein is a registered partnership firm.

2. The respondent filed the suit, claiming a decree for Rs. 38,39,353.00 together with interim interest and interest upon judgment against the petitioner. On May 06, 1998 the suit was decreed ex-parte. The principal ground urged by the petitioner for recalling of the said ex-parte decree is that the writ of summons in the suit was not served upon it and therefore it had no scope to contest the suit.

3. In the cause title of the plaint filed in the suit, the petitioner as the defendant was described as an existing company under the Companies Act, 1956 and having its registered Office at B-40, Phase-III, Industrial Area, S.A.S. Nagar, Mohali-160055, Punjab. The petitioner has asserted that although it had its registered office at the address mentioned in the cause title in the plaint and at present its registered office situated at C-40, Phase-III, Industrial Area, S.A.S. Nagar, Mohali-160055, Punjab but no writ of summons of the suit was served at its registered office in Mohali-160055, Punjab. It is further alleged that though in the cause title of the plaint filed in the suit it mentioned that the defendant no. 1, the petitioner was also carrying on business at “3/1 Magoe Lane, Calcutta-700001 C/o. Sethi Construction Company within the jurisdiction of this Court”, but in fact the petitioner had no office within the jurisdiction of this Court. The description of the petitioner in the cause title of the plaint filed in the suit that it is carrying on business at 3/1, Mangoe Lane, Calcutta-700001 is fraudulent, misconceived and false. It was only in or about the year 1995 the petitioner opened an office in the State of West Bengal at 106, B.T. Road, 700035. It is at the said office at B.T. Road out side the jurisdiction of this court, the petitioner received a communication issued by the Advocate-on-Record of the respondent, enclosing therewith a copy of an order dated January 28, 1999 passed in an execution proceeding arising out of the decree dated May 06, 1998. The petitioner has alleged that from the said communication dated February 02, 1999 and the copy of the execution application enclosed therewith, for the first time it came to know about the filing of the suit as well as the passing of the said decree dated May 06, 1998.

4. According to the petitioner, in the year 1993 it had a sales representative in Kolkata whose correspondence address was at 3/1, Mangoe Lane, Calcutta-700001. However, 3/1, Mangoe Lane, Calcutta-700001 was neither the administrative office of the petitioner nor did it carry on any business from any place in Kolkata prior to the year 1995. The said sales representative was neither competent nor authorised by the petitioner to accept any court papers on its behalf. Urging these facts, the petitioner filed this application for recalling of the said ex-parte decree dated May 06, 1998.

5. The respondent has contested this application and filed its affidavit-in-opposition. The respondent has alleged that the petitioner had their office at 3/1, Mangoe Lane, Calcutta-700001 and the said office presently stands shifted to 106, B.T. Road, 700035. The respondent has asserted that the summons of the suit was despatched on September 01, 1993 to the petitioner's registered office at B-40, Phase-III, Industrial Area, S.A.S. Nagar, Mohali-160055, Punjab which was served upon the petitioner on November 18, 1993. Therefore, the petitioner as the defendant duly received the summons of the suit and in spite thereof chose not to enter appearance in the suit. Accordingly, the suit was marked as an ‘undefended suit’ and thereafter, the suit was decreed ex-parte on May 06, 1998. In order to substantiate the service of the writ of summons of the suit the respondent in its affidavit-in-opposition disclosed a certificate dated December 19, 2018 issued by the Deputy Sheriff at Kolkata.

6. The petitioner has filed the affidavit-in-reply and dealt with the allegations made by the respondent in its affidavit-in-opposition. In the affidavit-in-reply, the petitioner has disclosed a copy of an affidavit-of-service affirmed by an Assistant of Sheriff at Kolkata on March 23, 1998 prior to the hearing of the said suit. By referring to the said affidavit-of-service the respondent has asserted that it is evident that a copy of the plaint filed in the suit was forwarded by the respondent under registered post with acknowledgement due addressed to the petitioner “Welkin Auto Private Limited, C/o. Sethi Construction Company, 3/1 Mangoe Lane, Calcutta-700001” which was delivered to Sethi Construction Company. The petitioner further alleged that when the respondent did not serve the writ of summons at its registered office in Punjab, as mandatory required under Order XXIX Rule 2 of the Code, the ex-parte decree dated May 06, 1998 is liable to be recalled.

7. The other ground pressed by the petitioner for recalling of the ex-parte decree was that since it was not carrying on any business within the jurisdiction of this Court, the respondent could not maintain the suit without first obtaining leave under Clause 12 of the Letters Patent, 1862.

8. In course of his argument, learned counsel appearing for the petitioner submitted that in its affidavit-in-opposition the respondent has not substantiated that the writ of summons of the suit was served upon the petitioner at its registered office in Mohali in the State of Punjab. It was further submitted that the certificate issued by the Deputy Sheriff at Kolkata on December 19, 2018 substantiates that the attempt of personal service of the writ of summons and copy of the plaint by the Serving Officer on the petitioner at 3/1 Mangoe Lane, Calcutta-700001 was unsuccessful due to non-existence of the petitioner at the said address. Therefore, it is evident that the petitioner had no office at 3/1 Mangoe Lane, Calcutta-700001. Even the service of writ of summons by the office of the Sheriff at Kolkata through post was served upon Sethi Construction Private Limited. Citing the decision of the Supreme Court in the case of Shalimar Rope Works Ltd. v. Abdul Hussain H.M. Hassanbhai Rassiwala, reported in (1980) 3 SCC 595 it was argued for the petitioner that the provisions of Order XXIX Rule 2 of the Code of Civil Procedure, requires service of the writ of summons on the Secretary of Director or any Principal Officer of the petitioner was mandatory. Hence, in the absence of the writ of summons of the suit being served upon the Secretary of Director or the Principal Officer of the petitioner the latter had no knowledge of the filing of the suit and on this ground alone the present application should be allowed.

9. On the other hand, learned counsel appearing for the respondent submitted that when the suit was filed in the year 1993 the provisions of Order V Rule 19A of the Code was applicable prior to its omission by the Code of Civil Procedure, Amendment Act, 1999 with effect from July 01, 2002. It was submitted that as per sub-Rules (1) and (2) of Rule 19A under Order V of the Code of Civil Procedure, the writ of summons of the suit could be served upon the petitioner or its agent empowered to accept the service, at the place where the petitioner or its agent actually carried on business. As such, when it is proved that the said agent of the petitioner had received the copy of the writ of summons at 3/1 Mangoe Lane, Calcutta-700001 there is no defect in the service of the writ of summons of the suit. It was further submitted that Chapter VII Rule 6 of the Original Side Rules of this Court also provides for service of writ of summons of a suit on the defendant as per the provisions laid down in Order V Rule 19A of the Code. The respondent further contended that in Paragraph 11 of the petition the petitioner had admitted that they had a sales representative in Calcutta whose correspondence address was at 3/1 Mangoe Lane, Kolkata-700001. Learned counsel for the respondent referred to the provision of Order V Rule 13 of the Code and argued that in a suit relating to a business or work against a person who does not reside within the limits of jurisdiction of the Court from which the summons is issued, service on any of his manager or any agent, who, at the time of service, personally carries on business or works for such person within such limits shall be deemed to be good service. With regard to the contention of the petitioner that the respondent could not have filed the said suit against them without obtaining leave under Clause 12 of the Letters Patent the respondent submitted that when the petitioner carrying on its business at 3/1 Mangoe Lane, Calcutta-700001 within the jurisdiction of this Court, it is not in necessary for obtaining leave under Clause 12 of the Letters Patent. In support of such contention, the respondent relied on the decision of the Supreme Court in the Cases of Patel Roadways Limited, Bombay v. Prasad Trading Company., reported in (1991) 4 SCC 270, Food Corporation Of India v. Evdomen Corporation, reported in (1999) 2 SCC 446 and Steel Authority Of India Ltd.… v. Dinesh Kumar Jaiswal…., reported in (2002) 1 CLJ 366. Learned counsel for the respondent strenuously urged for dismissal of the present application.

10. The first ground urged by the petitioner for recalling of the ex-parte decree dated May 06, 1998 is that the writ of summons of the suit was not served upon. The petitioner has further asserted that it never had any administrative office at 3/1 Mangoe Lane, Calcutta-700001 nor did it carry on any business from the said address situate within the jurisdiction of this Court. According to the petitioner, though they had a sales representative in Kolkata whose correspondence address is 3/1 Mangoe Lane, Calcutta-700001 but the said representative was neither competent nor authorised to indicate his office as the address of the petitioner. Further, the said sales representative was neither authorised nor competent to accept any court paper on behalf of the petitioner. Therefore, the petitioner has claimed that when the writ of summons of the suit was not served upon its registered office at Mohali in the State of Punjab. Further when it did not carry on any business at 3/1 Mangoe Lane, Calcutta-700001 within the jurisdiction of this Court there was no valid service of the writ of summons of the suit on itself and as such, the present application would succeed and the said decree dated May 06, 1999 would also be set aside.

11. As mentioned earlier, the respondent in its affidavit-in-opposition, particularly paragraph 13(iii) thereof asserted that the summons of the suit was despatched to the petitioner on September 1, 1993 at its registered office at Mohali in the State of Punjab and the same was served upon the judgment debtor on November 18, 1993. In this connection, the respondent relied upon the certificate dated December 19, 2018 issued by the Deputy Sheriff of Calcutta being Annexure-‘D’ to the said affidavit. However, from a bare reading of the said certificate issued by the Deputy Sheriff of Calcutta it is evident that the writ of summons of the suit was sent to the petitioner at 3/1 Mangoe Lane, Calcutta-700001, through the second officer, but the same could not be served upon the petitioner due to its non-existence at the said address. Thus, the respondent has filed to substantiate service of the writ of summons upon the petitioner at its registered office at Mohali, in the State of Punjab. The said postal certificate substantiates the contention that the petitioner had no office at 3/1, Mangoe Lane, Kolkata. In its affidavit-in-reply the petitioner has disclosed a copy of an affidavit-in-opposition affirmed on behalf of the respondent to be used as an affidavit-in-opposition to the instant application. In the said affidavit the respondent alleged that a copy of the writ of summons of the suit along with copies of the plaints were forwarded to the petitioner at 3/1 Mangoe Lane, Calcutta-700001 by registered post and postal acknowledgement receipt thereof was also annexed as Annexure-‘B’ thereto. The said postal acknowledgement receipt, being Annexure-‘B’ to the affidavit affirmed on behalf of the respondent on March 23, 1998 goes to show that the writ of summons and a duplicate copy of the plaint were served upon a company, known as Sethi Construction Company who was not the agent of the petitioner. In these facts, I am satisfied that the petitioner as the sole defendant has substantiated that it was not served with the summons of the suit. On the facts of the case as discussed above, there is no merit in the contention of the respondent based on the provision of Rule 19-A of Order V of the Code of Civil Procedure, which was in force in the year 1998. The respondent has not made out any case that the petitioner, as the defendant had otherwise notice of hearing of the suit or had sufficient time to appear and answer its claim in the suit. For the reasons as aforesaid, the application G.A. No. 1942 of 1999 succeeds and the decree dated May 06, 1998 passed by a learned Single Judge of this Court in the suit, C.S. No. 269 of 1993 is recalled.

12. Inasmuch as, the petitioner has substantiated that it was not served with the writ of summons of the suit and copy of the plaint, no condition is imposed on the petitioner for recalling of the ex-parte decree passed in the suit.

13. Since, the petitioner's application succeeds on the ground of non-service of the writ of summons, at this stage, it is not necessary to decide the other ground urged by the petitioner alleging that this Court does not have the jurisdiction to entertain the suit. Accordingly, the decisions cited by the respondent in support of its contention that there was no requirement for leave under Clause 12 of the Letters Patent, 1862 are not required to be dealt with at this stage.

14. Formal service of the writ of summons and the plaint filed in the suit on the petitioner, the sole defendant in the suit is dispensed with. The respondent, being the plaintiff is directed to serve a copy of the plaint filed in the suit on the advocate-on-record of the defendant/petitioner, in this application within three weeks from date. The petitioner shall file the written statement in the suit positively within five weeks from the date of receipt of the plaint by its advocate-on-record. If the petitioner raises any objection, in its written statement, to the jurisdiction of this Court to entertain the suit the same shall be decided as a preliminary issue in the suit after the parties will adduce their respective evidence.

15. Urgent certified website copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities.