Roop Lal Vs. Edmond International - Court Judgment

Excerpt:
in the present case, the summons were served on a clerk of the defendant-firm - the clerk not being a partner of the firm, it was ruled that the service could have effected on the defendant firm in terms of order 30 rule 3 of the civil procedure code, 1908 - - as per the report of the process server, the defendant was served on 6th july, 1988. since the defendant failed to enter appearance within the stipulated period, the deputy registrar by his order dated 19th august, 1988 directed that the suit be listed before the court on 8th september, 1988. (3) meanwhile, the defendant filed the present application bearing is no. - (a)upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within india upon any person having at the time of service the control or management of the partnership business there, as the court may direct, and such service shall be deemed good service upon the firm so sued whether all or any of the partners are within or without india. ' (6) relying on the provisions of the code mentioned hereinabove, the learned counsel submitted that in the present case even according to the report of the process server as well as according to his statement, the summons were served on one mr. though the parties were given an opportunity to lead evidence, but the plaintiff has failed to prove that shri gupla who had received summons was having control over the management ofthe partnership firm at the lime of service.sat pal, j.(1) this is an application filed on behalf of the defendant under order xxxvii rule 3 (7) read with section 151 of the code of civil procedure(in short code) for condensation of delay in filing the appearance. in this application it has been stated that the defendant came to know for the first time on 26.8.88 about this case when one of the partners of the defendant-firm happened to visit the office of their counsel in connection with another case. it has further been stated that after inspection of court records it was revealed that the summons were served upon one mr. gupta on 6.7.88 who was neither a partner nor an employee of the defendant-firm as he had left employment on 30th june, 1988. it has also been stated that after inspection of record, one of the partners was confined to bed due to viral fever and the other partner was already away to jaipur and the present application was being filed with due promptitude and it has been prayed that the delay in filing appearance be condoned. (2) briefly stated the facts of the case are that the plaintiff had filed the present suit against the defendants for recovery of rs. 2,03,037/77p under order xxxvii of the code. as per the report of the process server, the defendant was served on 6th july, 1988. since the defendant failed to enter appearance within the stipulated period, the deputy registrar by his order dated 19th august, 1988 directed that the suit be listed before the court on 8th september, 1988. (3) meanwhile, the defendant filed the present application bearing is no.6106/88 which was also listed before the court on 8.9.88 and on that date the plaintiff was directed to file reply to this application. the application came up for hearing before the court on 2.12.88 and it was observed that it was not possible to decide this application without evidence being recorded on the disputed question of fact arising in this application. accordingly, the deputy registrar was directed to record the evidence and thereafter place the matter before the court. pursuant to the said order, the evidence of the parties was recorded. thereafter arguments on this application were heard on 24.9.93 and 4.11.93. (4) mr. khurana, learned counsel appearing on behalf of the applicant/defendant submitted that the defendant was a firm and in terms of order xxx rule 3, the service on the firm could be effected on the following two manners:- '(a)upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within india upon any person having at the time of service the control or management of the partnership business there, as the court may direct, and such service shall be deemed good service upon the firm so sued whether all or any of the partners are within or without india.'(5) he also drew my attention to rule 5 of order xxx which reads as under:- 'where a summon is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by a notice in writing given at the time of such service whether he is served as a partner or as a person having control or management of the partnership business or in both characters, and in default of such notice, the person served shall be deemed to be served as a partner.'(6) relying on the provisions of the code mentioned hereinabove, the learned counsel submitted that in the present case even according to the report of the process server as well as according to his statement, the summons were served on one mr. r.p. gupta who was working as a clerk in the defendant-firm. he submitted that mr. gupta was neither a partner nor was a person having the control or the management of the partnership business nor the summons were accompanied by a notice required under order xxx rule 5 and as such it cannot be held that the service of the summons was effected on the defendant-firm on 6.7.88. in support of his contention, the learned counsel placed reliance on a judgment of the calcutta high court reported in the case of chowringhee properties ltd. vs . bright and mc ivor, : air1960cal294 and a judgment of the bombay high court reported in the case of m/s. ganeshilal ram kumar vs . jhangiram lilaram, : air1974bom101 . (7) learned counsel for the application further submitted that after the defendant came to know about the present suit having been filed against them, the defendant got the court records inspected and thereafter the present application was filed on 7.9.88. he also submitted that the time taken between 26.8.88 to 7.9.88 has been fully explained in this application. he, thereforee, contended that in view of the facts stated in the application, the delay in putting/filing appearance be condoned. (8) mr.talwani, learned counsel appearing on behalf of the plaintiff, however, submitted that the copy of summons containing the acknowledgement bears the signatures of mr. r.p.gupta as clerk of the firm and the stamp of the firm was duly fixed by mr. gupta which shows that mr. gupta had received the summons on behalf of the defendant-firm and as such the service was effected on the defendant-firm in accordance with law. he also drew my attention to photo copies of two letters dated 29.10.87 and 18.11.87 of the defendant firm purported to have been signed by shri gupta and submitted that these letters show that mr. gupta used to correspond on behalf of the defendant-firm and as such was an authorised person to receive the summon. learned counsel contended that the service of the summons on an employee of the firm was a proper and valid service on the firm itself. in support of his contention, learned counsel placed reliance on a judgment of madhya pradesh high court in the case of m/s. allwyn cooper firm v. shyamlal, 1970 m.p.l.j. notes of cases (67). (9) learned counsel for the plaintiff also submitted that even according to the facts stated in the application, the defendant came to know about the present suit on 26.8.88 and in terms of order 37 rule 3, defendant was required to enter an appearance within 10 days i.e. on or before 5th september, 1988 but the present application was filed on 7.9.88. he, thereforee, contended that since the application has not been filed within 10 days from the date of alleged knowledge ofthe suit, the application is liable to be dismissed. , (10) i have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. admittedly, the defendant is a firm and the service on the firm has to be effected in terms of order xxx rule 3 and 5 of the code. as per the report ofthe process server and also as per his statement, the summons in the present case were served on shri r.p. gupla, a clerk ofthe defendant-firm on 6.7.88. since mr. gupta was not a partner of the firm, the service could be effected on the defendant firm in terms of order xxx rule 3(b) read with rule.5 ofthe code. though the parties were given an opportunity to lead evidence, but the plaintiff has failed to prove that shri gupla who had received summons was having control over the management ofthe partnership firm at the lime of service. besides, contrary to order xxx rule 5, the summons were not accompanied by a notice in writing addressed to mr. gupta indicating that he was served as a person having the control over the management or the partnership business. in view of this, i hold that the service of summons had not been effected on the defendant-firm in accordance with law. the view i have taken is fully supported by the judgment of the bombay high court in the case of ganeshilal ram kumar (supra). the ratio of the judgment in the case of allwyn cooper fi rm (supra) relied upon by the learned counsel for the plaintiff is of no assistance to the plaintiff as in that case the defendant does not appear to have referred to the provisions of order xxx rules 3 and 5 and as such there is no discussion on the said provisions of the code. besides, in that case an ex-parte decree had been passed and the court was concerned with an application filed under the provisions of order 9 rule 13 of the code whereas in the present case no ex-parte decree has been passed and the application is not under order ix rule3 of the code. i also do not find any force in the contention of the learned counsel for the plaintiff that mr. gupta used to correspond on behalf of the defendant firm and as such he was an authorised person to accept summons, as the two letters referred to by the learned counsel have not been proved though an opportunity was given to the parties to lead evidence and further photo copies of the letters and not their originals are on record. (11) as stated in the application, the defendant came to know for the first time about the present suit on 26.8.88 and as such they were required to enter an appearance within 10 days from the said date i.e. on or before 5.9.88, but the appearance has been filed on 7.9.88. from the application, i, however, find that on 26.8.88 the defendant came to know only this fact that a case entitled rooplal vs. m/s.edmond international was shown in the cause list. thereafter the defendant got the file inspected through their counsel and it has further been stated in the application that after the inspection of the court records, one of the partners was confined to bed due to viral fever and the other was already away to jaipur and the application was being filed with promptitude. from the aforesaid facts, it is clear that the defendant has shown sufficient cause for the delay in entering the appearance and it is fit case for excusing the delay under rule 4(7) of order xxxvii. (12) in view of the above discussion, the application is allowed and the delay of the defendant in entering the appearance is condoned. the parties are, however, left to bear their own costs.