1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2421 OF 2008 IN SUIT NO.3359 OF 1991 Union Bank of India ...Plaintiffs Vs. Prabhakar Dattatraya Kulkarni & Ors. ...Defendants Mr.Gopal Krishna Swami i/b. M.S.Bodhanwala for Plaintiffs Mr. Nitin Gangal i/b. D.M.Shinde for Defendant No.1 Mr. R.M. Nakhawa for Defendant No.2 CORAM: SMT.ROSHAN DALVI, J. DATED: 16TH SEPTEMBER, 2008 P.C. 1. This Notice of Motion is taken out for recalling the order dated 25th June, 2003, for setting aside and for permitting Defendant Nos.1 to 5 to file written statement and for hearing the Suit on merits. It is, therefore, essentially under Order IX Rule 13 of C.P.C. The order dated 25th June, 2003 is the judgment. A judgment was passed for want of written statement under the provisions of Order VIIII Rule 10 of C.P.C, as no written statement was filed by the Defendants. The order recites that an affidavit of service is filed and the judgment is pronounced. The Suit is decreed for the principal amount with interest thereon claimed in the Suit 2 as well as costs. 2. This order shows that the Writ of Summons was served. It refers to the affidavit of service. The affidavit of service is filed by the Sheriff's Bailiff on 28th April, 2003. The affidavit of service shows inter alia the service upon Defendant No.1, who has taken out this Notice of Motion. It shows that the writ of summons was dispatched by registered A.D. Post on 4th December, 1991 to both the Defendants. It has been returned with the remark “intimation posted”. The registered packets are annexed. The registered packet of Defendant No.1 is to be seen. It shows that it is not claimed by the Defendant No.1 and accordingly intimation has been posted. It is for the Defendant to heed the intimation. Under Section 27 of the General Clauses Act, 1897 service sought to be effected by RPAD must be taken to have been effected at the time at which the letter would be delivered in the ordinary course of post. The Letter must, therefore, be deemed to have been delivered some time in December, 1991. Therefore, when a packet shows the remark “not claimed” so that intimation is posted, service by RPAD is deemed to be effected. The purpose and object of service is to confer knowledge of the filing of the Suit upon the Defendant, which purpose is served as the Defendant has appeared through his Advocate. 3 3. The Defendant No.1 has relied upon the judgment of the Division Bench of this Court in Tardeo Properties Pvt. Ltd. Vs. Bank of Baroda 2007(5) Bom.C.R.557 in which my attention is drawn to paragraphs 16 to 18, which deals with service under Rules 84 of the Bombay High Court, O.S. Rules. The said rule runs 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 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) 4 4. Consequently it is seen that the first test of service of the writ of summons is the Vakalatnama of the Defendant' s Advocate. If there is no such Vakalatnama then second test of the service of writ of summons is to see the service provided under the C.P.C. That would be service under Order V Rule 9 of the C.P.C. That would be shown by the affidavit of the Bailiff or the other person effecting the service. 5. In this case Vakalatnama was initially filed by Advocate Mr. Bandiwadekar on 6th January, 1992. Since the Vakalatnama has been filed, the proof of service as per the rules is seen. Had this Vakalatnama not been filed, proof of service by showing the service of summons under an affidavit of service of the Bailiff would be required to be seen. The Judgment under Order VIII Rule 10 of the C.P.C has been passed on 25th June, 2003 as no written statement was filed by Defendant No.1 despite service of the Writ of Summons and representation on his behalf by an Advocate. It is the case of Defendant No.1 that his first Advocate was discharged and an Advocate Mr. J.M.Bhatt was engaged. The said Advocate expired when the judgment came to be passed. That does not matter. The Defendant is enjoined to engage yet another Advocate. The Defendant is enjoined to 5 file his written statement as set out in the Summons. That having not been done, Judgment under Order VIII Rule 10 has to follow. 6. The Defendant contends that service of the summons has not been effected. 7. That is the second test. That has to be seen only if the 1st test is not fulfilled. In this case that has also been fulfilled. The affidavit of service is also filed. The affidavit of service shows the summons being served by RPAD under the provisions of Order V Rule 9 of the C.P.C. That having been sent to Defendant No.1 has not been claimed by Defendant No.1. The postal acknowledgment shows that it is unclaimed and hence, intimation is posted. 8. The aforesaid judgment in the case of Tardeo Properties (Supra) shows that it relates to the commencement period of 12 weeks for filing the written statement from the date of the filing of the Vakalatnama. The judgment observes that even if proof of service is seen by the Defendant having filed his Advocate' s Vakalatnama, if the writ of summons was never served the Vakalatnama would not establish service to the contrary. The aforesaid judgment further refers to Rules 70 6 and 79 of the High Court Original Side Rules with regard to the name and address of the party or the Advocate to be stated in every process and the undertaking of the Advocate to accept service, which may be rendered redundant, if service is not shown. In this case references to those rules would not come into play because, service is shown to be properly effected. 9. The aforesaid judgment further relies upon Rule 76 as the mode of service. This is the same mode of service as provided in the C.P.C. Under that rule the proof of service can be seen by the Defendant's signature of having accepted service or the postal acknowledgment of the Defendant having refused service as a prima facie proof of service. In other cases the Court is required to hold inquiry as it thinks fit and either declare the summons duly served or order fresh service. Consequently in all such other cases, which would include a case of a unclaimed service despite intimation posted, it is for the Court to accept or refuse such service. It is seen as aforesaid in the case of Tardeo Properties (supra) that such service can be accepted as it is a proper mode of service under the General Clauses Act. In this case service is seen to have been correctly effected. 7 10. It may be mentioned that if service is not effected the Defendant would not have been represented by an Advocate. Consequently Rule 84 relies upon the vakalatnama of the Advocate as a prime test by which the Court is satisfied that service is effected. 11. The Defendant No.1 has relied upon the judgment in the case of Rabindra Singh Vs. Financial Commissioner (2008) 7 Supreme Court Cases 663 in which knowledge of the constituted attorney of the Defendant is held not to be the knowledge of the Defendant of the filing of the Suit. In that case the question of Defendant suffering prejudice by not being served has been considered. That was a suit for partition. It is observed that the Defendant could have raised objections with regard to the allotment of lands upon the final decree being passed. The deprivation of such opportunity has been held to be prejudice suffered by the Defendant. It is further observed that to set aside the order the Defendant must establish sufficient cause for nonappearance on the dates fixed for hearing. Having no knowledge of the suit filed against the Defendant is held to be sufficient cause. In this case no constituted attorney has filed a written statement and hence the very analogy would not apply. 8 12. In the case of Union of India Vs. Manager, M/s. Jain & Associates (2001)3 SCC 277 also relied upon by the Defendant No.1, Order IX Rule 6 of the C.P. C has been considered. What is sufficient cause which prevented the Defendant from appearing has been considered. The Defendant No.1 in this case has contended that the sufficient cause is reflected in the affidavit of service showing it is not good service. That is an incorrect contention. 13. In this case “No Objection Certificate” of the first Advocate was obtained and the vakalatnama of the second Advocate Mr. J.M. Bhatt had been filed on 12th June, 1996. On the date of the judgment on 25th June, 2003 his vakalatnama was on record. No other vakalatnama was filed. He is stated to have expired in 2002. The death certificate is not produced. The Plaintiff' s Advocate states that he does not know this fact. In any event, Written Statement had to be filed well before the Defendant' s Advocate expired. There is nothing to show why that is not done. 14. It is now seen that the Defendant No.1 was represented by his Advocate initially Mr. Bandiwadekar and later Mr. 9 Bhatt that was because he was served the Writ of Summons. 15. It may be mentioned that it is for the Defendant to prove that the letter sent in the course of the post and shown to have been tendered to him was not sent to him at the correct address and has not been received by him. The address on the parcel sent by post is not denied. Hence it is sent at the correct address. There is no dispute that it is prepaid or contains the Writ of Summons which is the document which was posted by registered post. The presumption under Section 27 of the General Clauses Act, 1897 applies even to letters sent by ordinary post. The presumption is stronger if the letter is registered with the postal authority. 16. When the parcel has been sent by registered post and contains the endorsement of the postal authority a further presumption under Section 114(f) of the Indian Evidence Act also arises. The Court is then entitled to presume that the common course of business has been followed in that case. 17. In the case of Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433 a notice sent by post upon the recipient was considered. The notice was sent by registered post and returned back with 10 the postal acknowledgment of refusal. Presumption under the aforesaid Sections was drawn. Since that presumption is rebuttable it was held that the onus lies on the addressee to show that the address was incorrect or that the postal authorities never tendered the registered letter to him, or that there was no occasion for him to refuse the same. It was held that the burden to rebut the presumption lies on the party challenging the factum of service. Mere denial by that party was not sufficient to rebut the presumption relating to service of the registered cover. It was consequently held that the service was complete. 18. Further in the case of Shimla Development Authority and others Vs. Santosh Sharma and another, (1997) 2 SCC 637 even a notice which was sent by registered post which was not returned unserved and the acknowledgment card was also not returned it was held that the notice was deemed to have been served. Consequently it is for the Defendants to show that they were not served if they allege non-service. Aside from a mere allegations that is not stated. Their appearance in Court represented by their Advocates, one after another, is in fact the strongest circumstance to show the service. 11 19. After such representation no written statement came to be filed by Defendant No.1 from 1991 until 2003. When the judgment for want of written statement came to be passed. The judgment is passed under Order VIII Rule 10 of the C.P.C. It is not an Ex-parte decree which requires the Court passing the decree to set it aside on a sufficient cause being shown by the Defendant. 20. The suit was placed for hearing in the ordinary course as an undefended Suit and the judgment came to be passed. The Defendant No.1 having been represented had failed to file his written statement. Only an appeal lies from such a judgment. 21. The Notice of Motion is not maintainable. 22. Accordingly Notice of Motion is dismissed. 23. No order as to costs. (SMT. ROSHAN DALVI, J.)