1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1515 OF 2003 NOTICE OF MOTION NO.1515 OF 2003 NOTICE OF MOTION NO.1515 OF 2003 IN IN IN SUMMARY SUIT NO.2323 OF 2000 SUMMARY SUIT NO.2323 OF 2000 SUMMARY SUIT NO.2323 OF 2000 Jagat Pravinchandra Shah ...Plaintiff Vs. Smt. Mamta Pankaj Dharia & Ors. ...Defendants ----- Mr.S.N.Vaishnava i/b. N.N. Vaishnawa for Plaintiff Mr. R.T. Parekh for Defendants CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 26TH JULY, 2005 DATED: 26TH JULY, 2005 DATED: 26TH JULY, 2005 P.C. P.C. P.C. 1. The Plaintiff has filed this summary suit for 1. The Plaintiff has filed this summary suit for 1. The Plaintiff has filed this summary suit for recovery of Rs.1378000/- along with costs and interest recovery of Rs.1378000/- along with costs and interest recovery of Rs.1378000/- along with costs and interest on the principal amount Rs.10 lakhs at the rate of 18% on the principal amount Rs.10 lakhs at the rate of 18% on the principal amount Rs.10 lakhs at the rate of 18% per annum. per annum. per annum. 2. The Plaintiff took out a Notice of Motion for 2. The Plaintiff took out a Notice of Motion for 2. The Plaintiff took out a Notice of Motion for attachment before Judgment. The Defendants were attachment before Judgment. The Defendants were attachment before Judgment. The Defendants were represented by their Advocate at the time of the represented by their Advocate at the time of the represented by their Advocate at the time of the ad-interim application made on 10th May, 2000 in that ad-interim application made on 10th May, 2000 in that ad-interim application made on 10th May, 2000 in that Notice of Motion. The Defendant’s Advocate made a Notice of Motion. The Defendant’s Advocate made a Notice of Motion. The Defendant’s Advocate made a statement that they do not intend to leave or to statement that they do not intend to leave or to statement that they do not intend to leave or to dispose of or transfer in favour of any third party dispose of or transfer in favour of any third party dispose of or transfer in favour of any third party rights in respect of the premises described in para rights in respect of the premises described in para rights in respect of the premises described in para (e) of that Notice of Motion. Their statement was (e) of that Notice of Motion. Their statement was (e) of that Notice of Motion. Their statement was accepted. No further orders were passed. Liberty to accepted. No further orders were passed. Liberty to accepted. No further orders were passed. Liberty to mention was given. The Defendants waived service. mention was given. The Defendants waived service. mention was given. The Defendants waived service. 2 3. Despite the waiver of service the Defendant’s 3. Despite the waiver of service the Defendant’s 3. Despite the waiver of service the Defendant’s Advocate wrote to the Plaintiff’s Advocate that he had Advocate wrote to the Plaintiff’s Advocate that he had Advocate wrote to the Plaintiff’s Advocate that he had filed his Vakalatnama only in the Notice of Motion and filed his Vakalatnama only in the Notice of Motion and filed his Vakalatnama only in the Notice of Motion and that the Defendants would have to be served the Writ that the Defendants would have to be served the Writ that the Defendants would have to be served the Writ of summons. of summons. of summons. 3. The Plaintiffs sent the writ of summons to the 3. The Plaintiffs sent the writ of summons to the 3. The Plaintiffs sent the writ of summons to the Defendants by RPAD. An affidavit of service was filed Defendants by RPAD. An affidavit of service was filed Defendants by RPAD. An affidavit of service was filed on 22nd September, 2000. The affidavit showed that on 22nd September, 2000. The affidavit showed that on 22nd September, 2000. The affidavit showed that the registered packets sent to the Defendants were the registered packets sent to the Defendants were the registered packets sent to the Defendants were returned with the endorsement ‘‘Not claimed. Returned returned with the endorsement ‘‘Not claimed. Returned returned with the endorsement ‘‘Not claimed. Returned to sender’’. to sender’’. to sender’’. 4. The original registered packets sent to each 4. The original registered packets sent to each 4. The original registered packets sent to each of the three defendants in the suit filed with the of the three defendants in the suit filed with the of the three defendants in the suit filed with the affidavit of service are produced before the Court. affidavit of service are produced before the Court. affidavit of service are produced before the Court. The postal endorsement is seen to have been made. The The postal endorsement is seen to have been made. The The postal endorsement is seen to have been made. The packets also show an intimation given to the packets also show an intimation given to the packets also show an intimation given to the Defendants, that the registered packets were sought to Defendants, that the registered packets were sought to Defendants, that the registered packets were sought to be served. be served. be served. 5. The postal acknowledgment card shows the 5. The postal acknowledgment card shows the 5. The postal acknowledgment card shows the service made on 16th August, 2000. The intimation was service made on 16th August, 2000. The intimation was service made on 16th August, 2000. The intimation was given on 18th August, 2000. The packets have been given on 18th August, 2000. The packets have been given on 18th August, 2000. The packets have been returned to sender on 29th August, 2000. returned to sender on 29th August, 2000. returned to sender on 29th August, 2000. 6. It is seen that the service sought to be 6. It is seen that the service sought to be 6. It is seen that the service sought to be affected was not claimed by the Defendants. This has affected was not claimed by the Defendants. This has affected was not claimed by the Defendants. This has 3 to be seen in view of the further fact that the to be seen in view of the further fact that the to be seen in view of the further fact that the Defendants had knowledge and information of the suit, Defendants had knowledge and information of the suit, Defendants had knowledge and information of the suit, they had appeared at the time of the ad-interim they had appeared at the time of the ad-interim they had appeared at the time of the ad-interim reliefs applied for by the Plaintiff in the Notice of reliefs applied for by the Plaintiff in the Notice of reliefs applied for by the Plaintiff in the Notice of Motion for attachment before Judgment, they were Motion for attachment before Judgment, they were Motion for attachment before Judgment, they were served the copy of the plaint and Notice of Motion, served the copy of the plaint and Notice of Motion, served the copy of the plaint and Notice of Motion, they were represented by their Advocate, and their they were represented by their Advocate, and their they were represented by their Advocate, and their Advocate had waived service. Later it was contended Advocate had waived service. Later it was contended Advocate had waived service. Later it was contended that he appeared only in Notice of Motion and hence that he appeared only in Notice of Motion and hence that he appeared only in Notice of Motion and hence the service of the Writ of Summons by registered post the service of the Writ of Summons by registered post the service of the Writ of Summons by registered post was further effected. At the time of the service, was further effected. At the time of the service, was further effected. At the time of the service, therefore the Defendants knew what was being served therefore the Defendants knew what was being served therefore the Defendants knew what was being served upon them. The Defendants did not claim the packets, upon them. The Defendants did not claim the packets, upon them. The Defendants did not claim the packets, despite the intimation given to them. despite the intimation given to them. despite the intimation given to them. 7. The Defendants contend that the service is not 7. The Defendants contend that the service is not 7. The Defendants contend that the service is not properly effected because the service is not refused; properly effected because the service is not refused; properly effected because the service is not refused; it is only ‘‘ not claimed’’. it is only ‘‘ not claimed’’. it is only ‘‘ not claimed’’. 8. The Defendant’s Advocate relied upon the 8. The Defendant’s Advocate relied upon the 8. The Defendant’s Advocate relied upon the Judgment of Justice Khanwilkar in a case of Lalmani Judgment of Justice Khanwilkar in a case of Lalmani Judgment of Justice Khanwilkar in a case of Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar reported in Ramnath Tiwari Vs. Bhimrao Govind Pawar reported in Ramnath Tiwari Vs. Bhimrao Govind Pawar reported in 2001(3) 2001(3) 2001(3) BCR 21 in which it has been held that BCR 21 in which it has been held that BCR 21 in which it has been held that ‘‘Service not claimed’’ can be for various reasons ‘‘Service not claimed’’ can be for various reasons ‘‘Service not claimed’’ can be for various reasons other than other than other than refusal, and unless there is positive proof refusal, and unless there is positive proof refusal, and unless there is positive proof of service of service of service as per principles of law, service cannot be as per principles of law, service cannot be as per principles of law, service cannot be presumed. The Judgment further observes that the presumed. The Judgment further observes that the presumed. The Judgment further observes that the denial of receipt by a Defendant was sufficient denial of receipt by a Defendant was sufficient denial of receipt by a Defendant was sufficient rebuttal of the presumption. rebuttal of the presumption. rebuttal of the presumption. 4 9. Mr. Parekh therefore, contends that he has 9. Mr. Parekh therefore, contends that he has 9. Mr. Parekh therefore, contends that he has denied the service. Hence, the presumption of service denied the service. Hence, the presumption of service denied the service. Hence, the presumption of service is rebutted. is rebutted. is rebutted. 10. This rebuttal has to be seen as per the facts 10. This rebuttal has to be seen as per the facts 10. This rebuttal has to be seen as per the facts of each case. In this case the endorsement is made by of each case. In this case the endorsement is made by of each case. In this case the endorsement is made by the postal authority in the usual conduct of its the postal authority in the usual conduct of its the postal authority in the usual conduct of its business. The service affected by post shown by the business. The service affected by post shown by the business. The service affected by post shown by the acknowledgment otherwise carries the presumption that acknowledgment otherwise carries the presumption that acknowledgment otherwise carries the presumption that it was affected under the Evidence Act. The denial of it was affected under the Evidence Act. The denial of it was affected under the Evidence Act. The denial of the Defendants has to be seen in the light of dates of the Defendants has to be seen in the light of dates of the Defendants has to be seen in the light of dates of the various endorsements during postage showing the the various endorsements during postage showing the the various endorsements during postage showing the initial service upon the Defendants on 16th August, initial service upon the Defendants on 16th August, initial service upon the Defendants on 16th August, 2000 till it was returned back to the Court (sender) 2000 till it was returned back to the Court (sender) 2000 till it was returned back to the Court (sender) on 29th August, 2000. The material endorsement is on 29th August, 2000. The material endorsement is on 29th August, 2000. The material endorsement is that of intimation given to the Defendants on 18th that of intimation given to the Defendants on 18th that of intimation given to the Defendants on 18th August, 2000. Since the intimation was given it was August, 2000. Since the intimation was given it was August, 2000. Since the intimation was given it was for the Defendants to claim the registered packets. for the Defendants to claim the registered packets. for the Defendants to claim the registered packets. The Defendants did not claim the registered packets. The Defendants did not claim the registered packets. The Defendants did not claim the registered packets. Hence a further endorsement in red is made by the Hence a further endorsement in red is made by the Hence a further endorsement in red is made by the Postal Authority that it was not claimed. The Postal Authority that it was not claimed. The Postal Authority that it was not claimed. The Judgment showing various reasons for not claiming the Judgment showing various reasons for not claiming the Judgment showing various reasons for not claiming the service other than refusal has to be considered in service other than refusal has to be considered in service other than refusal has to be considered in that light. In this case the service was not refused that light. In this case the service was not refused that light. In this case the service was not refused by the Defendants. The intimation though given was by the Defendants. The intimation though given was by the Defendants. The intimation though given was not availed and the packets were not claimed. That not availed and the packets were not claimed. That not availed and the packets were not claimed. That was the reason for the Postal Authority’s endorsement was the reason for the Postal Authority’s endorsement was the reason for the Postal Authority’s endorsement ‘‘not claimed’’. That reason tentamounts to and is ‘‘not claimed’’. That reason tentamounts to and is ‘‘not claimed’’. That reason tentamounts to and is 5 equivalent to ‘‘refusal’’ to the postal authorities at equivalent to ‘‘refusal’’ to the postal authorities at equivalent to ‘‘refusal’’ to the postal authorities at the time the packet is sought to be delivered. the time the packet is sought to be delivered. the time the packet is sought to be delivered. 11. It is important to note that the suit was 11. It is important to note that the suit was 11. It is important to note that the suit was already filed and one application for attachment already filed and one application for attachment already filed and one application for attachment before judgment was already moved. The Defendants before judgment was already moved. The Defendants before judgment was already moved. The Defendants were represented and knew about filing of the suit. were represented and knew about filing of the suit. were represented and knew about filing of the suit. The Defendants were specifically served despite waiver The Defendants were specifically served despite waiver The Defendants were specifically served despite waiver of service and having known of the suit being filed of service and having known of the suit being filed of service and having known of the suit being filed and having been given intimation by the postal and having been given intimation by the postal and having been given intimation by the postal authorities they did not claim the registered packet. authorities they did not claim the registered packet. authorities they did not claim the registered packet. The entire exercise came to naught. Though therefore, The entire exercise came to naught. Though therefore, The entire exercise came to naught. Though therefore, the Plaintiffs did as directed by the Defendant’s the Plaintiffs did as directed by the Defendant’s the Plaintiffs did as directed by the Defendant’s Advocate, the Defendants did not avail of the service Advocate, the Defendants did not avail of the service Advocate, the Defendants did not avail of the service sought to be affected upon them by not claiming the sought to be affected upon them by not claiming the sought to be affected upon them by not claiming the packets. In the facts of this case, therefore, it packets. In the facts of this case, therefore, it packets. In the facts of this case, therefore, it tentamount to the refusal. tentamount to the refusal. tentamount to the refusal. 12. It may be mentioned that the concept of 12. It may be mentioned that the concept of 12. It may be mentioned that the concept of waiving service primarily relates to service of the waiving service primarily relates to service of the waiving service primarily relates to service of the writ of summons. That is the only service writ of summons. That is the only service writ of summons. That is the only service contemplated in Order V of the C.P.C. A copy of the contemplated in Order V of the C.P.C. A copy of the contemplated in Order V of the C.P.C. A copy of the draft Notice of Motion had been served when the draft Notice of Motion had been served when the draft Notice of Motion had been served when the ad-interim application was made. The waiver of only ad-interim application was made. The waiver of only ad-interim application was made. The waiver of only such Notice of Motion has to be specified by the such Notice of Motion has to be specified by the such Notice of Motion has to be specified by the Defendants’ Advocate. That having not been done, the Defendants’ Advocate. That having not been done, the Defendants’ Advocate. That having not been done, the waiver must be taken to be of the writ of Summons waiver must be taken to be of the writ of Summons waiver must be taken to be of the writ of Summons which was to be served as per the procedure laid down which was to be served as per the procedure laid down which was to be served as per the procedure laid down in Order V of the C.P.C. in Order V of the C.P.C. in Order V of the C.P.C. 6 13. It is seen that the service of the writ of 13. It is seen that the service of the writ of 13. It is seen that the service of the writ of summons was not even required to be made as it was summons was not even required to be made as it was summons was not even required to be made as it was waived. It was nevertheless made. It was not waived. It was nevertheless made. It was not waived. It was nevertheless made. It was not claimed. It was avoided or refused to be claimed claimed. It was avoided or refused to be claimed claimed. It was avoided or refused to be claimed despite the intimation. It was in fact and in terms despite the intimation. It was in fact and in terms despite the intimation. It was in fact and in terms refused. The Defendants therefore, must thank refused. The Defendants therefore, must thank refused. The Defendants therefore, must thank themselves for what happened in the suit filed against themselves for what happened in the suit filed against themselves for what happened in the suit filed against them. them. them. 14. An Ex-parte decree came to be passed against 14. An Ex-parte decree came to be passed against 14. An Ex-parte decree came to be passed against the Defendants. The Defendants have sought to set the Defendants. The Defendants have sought to set the Defendants. The Defendants have sought to set aside that decree. The Defendants made an application aside that decree. The Defendants made an application aside that decree. The Defendants made an application for stay of the execution of the decree. for stay of the execution of the decree. for stay of the execution of the decree. 15. The order came to be passed by Justice 15. The order came to be passed by Justice 15. The order came to be passed by Justice S.A.Bobde on 21st July, 2003 staying the execution of S.A.Bobde on 21st July, 2003 staying the execution of S.A.Bobde on 21st July, 2003 staying the execution of the decree upon the appointment of the Court Receiver the decree upon the appointment of the Court Receiver the decree upon the appointment of the Court Receiver for the property described in the title of the plaint. for the property described in the title of the plaint. for the property described in the title of the plaint. That is the place of the residence of the Defendants. That is the place of the residence of the Defendants. That is the place of the residence of the Defendants. 16. Under that ad-interim order the Court Receiver 16. Under that ad-interim order the Court Receiver 16. Under that ad-interim order the Court Receiver was appointed without the power to sell the premises was appointed without the power to sell the premises was appointed without the power to sell the premises and was to allow the Defendants to reside in the and was to allow the Defendants to reside in the and was to allow the Defendants to reside in the premises without security. He was to take formal premises without security. He was to take formal premises without security. He was to take formal possession and allow the Defendants to reside in the possession and allow the Defendants to reside in the possession and allow the Defendants to reside in the premises on usual terms and conditions as his Agents. premises on usual terms and conditions as his Agents. premises on usual terms and conditions as his Agents. 17. The Defendants appealed that order. The order 17. The Defendants appealed that order. The order 17. The Defendants appealed that order. The order 7 came to be confirmed by the Division Bench on 17th came to be confirmed by the Division Bench on 17th came to be confirmed by the Division Bench on 17th November, 2003. The order of appointment of the Court November, 2003. The order of appointment of the Court November, 2003. The order of appointment of the Court Receiver, therefore, came to be confirmed. The Receiver, therefore, came to be confirmed. The Receiver, therefore, came to be confirmed. The Defendants were to be the Agents of the Receiver on Defendants were to be the Agents of the Receiver on Defendants were to be the Agents of the Receiver on usual terms and conditions. Consequently the usual terms and conditions. Consequently the usual terms and conditions. Consequently the Defendants have to give formal possession to the Court Defendants have to give formal possession to the Court Defendants have to give formal possession to the Court Receiver and execute the agency agreement containing Receiver and execute the agency agreement containing Receiver and execute the agency agreement containing the usual terms and conditions. the usual terms and conditions. the usual terms and conditions. 18. The Court Receiver has made a detailed report 18. The Court Receiver has made a detailed report 18. The Court Receiver has made a detailed report dated 16th March, 2005. about what has transpired dated 16th March, 2005. about what has transpired dated 16th March, 2005. about what has transpired after his appointment. after his appointment. after his appointment. 19. The report shows that pursuant to the order