Chaturbhuj Sohanlal Vs. Clive Mills Co. Ltd. - Court Judgment

Sinha, J.

1. This is an appeal against an order made by Mitter, J., dated 1st May, 1961 whereby he dismissed an application made on behalf of the respondent, under Section 14(2) of the Arbitration Act for setting aside a decree made in terms of an award made in Case No. 249 of 1949 of the Tribunal of Arbitration, Bengal Chamber of Commerce. The facts are briefly as follows: The appellant before us, the petitioner in the said application, is a partnership firm, of which the partners are Sohanlal Ruia and Iswari Prosad Ruia. By a contract in writing No. 46/A dated 29th March 1946 entered into between the appellant firm and the respondent company, Messrs. Clive Mills, Co. Ltd. the appellant sold and the respondent bought, 2000 mda of jute on terms and conditions mentioned in the said contract, which was in the prevailing contract form of the Indian Jute Mills Association. The said contract contained the usual arbitration clause whereby all disputes and differences were to be referred to the arbitration of the Bengal Chamber of Commerce, according to the rules of its Tribunal of Arbitration for the time being in force. Disputes and differences having arisen between the parties in respect of the said contract, the same were referred to the arbitration of the Tribunal of the Bengal Chamber of Commerce, in terms of the said arbitration clause and was numbered as Case No. 485 of 1947. In accordance with the rules of the said Tribunal, the Registrar constituted a court to adjudicate upon the dispute. Notice of the fact was given to the appellant and it was asked to file its statement. On account of certain proceedings had in this Court, the arbitration could not be proceeded with before July, 1949. On the 2Ist July, 1949 the Tribunal made an award against the appellant and in favour of the respondent, for a sum of Rs. 36,500/- together with interest at the rate of 6 per cent per annum, and costs. On the 23rd February, 1950 a notice under Section 14(2) of the Arbitration Act (hereinafter referred to as the 'said Act') was issued from this Court; Section 14(2) provides that the arbitrators shall, at the request of any party to the arbitration agreement, cause the award or a signed copy of it together with any deposition or document which may have been taken and proved before the arbitrators, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award. The said 'Act does rot prescribe the manner in which the service of notice under Section 14(2) is to be effected. Section 44 of the said Act gives the High Court the power to make rules consistent with the said Act as to the filing of awards and all proceedings consequent thereon and incidental thereto. Rules have been framed by the High Court in exercise of such flower. Under Rule 14, where the provisions of Rule 13 are complied with by the arbitrators, the Registrar is required to file the award and to issue notice thereof to the parties under Section 14(2) of the said Act intimating to them that the Court will proceed to pronounce judgment thereon on a date to be fixed in the notice. The notice is in a prescribed form, being Form No. 6, and it is to be served by such party or parties as the Registrar may direct Rule 15 prescribes that such a notice has to be served not less than eight clear days before the returnable date, in the manner provided for service of notice in Chapter VIII, so far as the same may be applicable. Rule 26 of Chapter VIII lays down that 'except where otherwise provided by Statute or prescribed by Rules of this Court, all notices, summonses, orders or other documents required to be given to or served, on any person, shall be served in the manner provided by the Code for the service of summons.' Under Rule 28, 'where personal service of a notice is required, the service shall be effected, as nearly as may be, in the manner prescribed for the personal service of a Writ of summons.'

2. On the 6th March, 1950 the notice is stated to have been served on the appellant and this appears from a joint affidavit of service affirmed on the 31st March, 1950 which has been filed in Court It will be necessary to refer to this affidavit in greater detail presently. On the 17th April, 1950 a decree was passed upon the award. Besides the decree made in this case, the respondent obtained three other decrees against the appellant in Award Cases Nos. 248 of 1949, 277 of 1949 and 278 of 1949. In November 1955 the respondent made two applications for execution of two of these decrees by arrest and detention of Sohanlal Ruia, one of the partners, in civil prison. On or about the 28th January, 1956 an application was made on behalf of 'Chaturbhuj Sohanlal' by Sohanlal Ruia, describing himself as a Karta and/or a partner. In the application, the relief asked for was that four decrees passed in award cases of the Tribunal of Arbitration of the Bengal Chamber of Commerce, including the decree that was passed herein on the 17th April, 1950 should be set aside. The allegation in the petition was that Sohanlal Ruia was a Karta of a Hindu joint family and that several contracts were entered into with the respondent company by the said joint family. The petition proceeded to state that disputes arose under the said contracts and were referred to the arbitration of the said Tribunal and four awards were made and filed in Court and decrees were passed on the said awards. It was then stated that the award should be set aside because 'no valid notice under Section 14(2) of the Indian Arbitration Act was issued in all the four cases'. In order to appreciate why no valid notice was said to have been served the following grounds set out in the petition may be noted.

'(b) No notice under Section 14(2) of the Indian Arbitration Act was issued against your petitioner as Karta and/or as a partner or against any member of the joint family in any of the said cases.

(c) Notice under Section 14(2) of the Indian Arbitration Act was not served on your petitioner as Karta of the joint family and/or as a partner and/or in any other capacity nor on any member of the said joint family.

(e) As there was no valid notice under Section 14(2) of the Indian Arbitration Act and for no service in the manner prescribed by law there was no service as contemplated by Article 51 of the Limitation Art and therefore, the Limitation for applying to set aside the said Award never started to run and the decree was passed before expiry of time for applying to set aside the award.'

3. These grounds were supported by an affirmation of Sohanlal Ruia a being true to his knowledge. It is clear to me that in the grounds made out, there was no denial at the factum of service, but it was stated that the service was not in accordance with law and as such not a. valid service. This application having come up for hearing before S.R. Das Gupta J., an objection was made that one application could not be made for setting aside four awards which had no connection with one another. Thereupon, by an order dated 28th February 1956 the learned Judge allowed the applicant to withdraw the said application with regard to three of the decrees and the application was treated as being an application in respect of only one of them. The application, so far as the award in the present case was concerned, was withdrawn. On the 1st March, 1956 a second application was made for setting aside the decree dated 17th April, 1950 and the petition was made on behalf of 'Chaturbhuj Sohanlal' through S7ohanlal Ruia as a Karta and/or a partner. In the meanwhile, what had happened was that a suit had been filed for partition of the joint family of the Ruias and on the 8th January, 1952 a preliminary decree for partition had been passed appointing a Special Referee and Commissioner of Partition to effect the partition. The Special Referee and Commissioner of Partition made a report that the business of 'Chaturbhuj Sohanlal' did not form a part of the joint family of the Ruias, but was carried on by Sohanlal Ruia and Iswari Prosad Ruia in, their individual capacity and not as a joint family business. On the 14th February, 1955 a report of the said Special Referee was confirmed and a final decree was passed in the partition suit. In spite of all this, the petition, which was made on the 1st day of March, 1956 was made as aforesaid, and the grounds made out for setting aside the award were identical with those of the previous petition, namely, that no valid notice had been issued under Section 14(2) as it was not issued against Sohanlal Ruia as Karta and/or as partner or against any member of the joint family and that the service was not in a manner prescribed by law. On the 23rd April, 1956 the second application was dismissed on the ground that the petition made on behalf of 'Chaturbhuj Sohanlal' through Sohanlal Ruia as Karta and/or partner and signed by Sohanlal Ruia as Karta was not in accordance with law. Liberty was however given to make a fresh application in accordance with law. Thereupon, an application was made, based on a petition affirmed by Sohanlal Ruia on the 25th day of March, 1957. This petition is set out in the Paper Book at pages 4 to 10. In the petition, it will be observed, that on this occasion the petition was made by 'Chaturbhuj Sohanlal' itself and not through Sohanlal Ruia and it was signed by both the partners. In this petition, the grounds were varied, as will appear from the relevant ones set out below:

'(a) No valid notice under Section 14(2) of the Indian Arbitration Act and/or Order 30 R. 3 of the Code of Civil Procedure was issued.

(b) No notice under Section 14(2) of the Indian Arbitration Act was served on your petitioner validly or at all.

(d) As there was no valid notice under Section 14(2) of the Indian Arbitration Act and/or no service in the manner prescribed by law there was no service as contemplated by Article 51 of the Limitation Act and therefore the Limitation for applying to set aside the said Award never started to run and the decree was passed before expiry of time for applying to set aside the Award.'

4. In the body of the petition nothing was said as to how the petitioner came to know of the decree.

In the affidavit in opposition, it was stated on behalf of the respondent that notice under Section 14(2) of the said Act had been validly issued and served upon Sohanlal Ruia who duly accepted the same but refused to sign in acknowledgment thereof. Reference was made to a joint affidavit of service affirmed by Ratanlal Saraf and Profulla Ranjan Pal affirmed on the 31st March, 195O and filed in Court. This allegation had been dealt with in the affidavit in reply affirmed by Sohanlal Ruia and Iswari Prosad Ruia on the 18th day of May, 1957. The relevant paragraph is paragraph 7 which runs as follows:

'7. With reference to paragraph 7 of the said affidavit we repeat what we stated in paragraph S of the petition and deny each and every allegation contrary thereto. In particular, we deny that the notice was validly issued and/or served or was served on Sohanlal Ruia. We dispute the insinuations contained in the said paragraph. We deny that the application is a frivolous one or has been made by way of counter-blast. We deny that the defect in respect of service of the notice has been waived or that we are estopped from taking any point as to the defect or that the defects relate to procedure.'

5. This paragraph has been affirmed, not as true to knowledge but as 'matters of record'. There is therefore no specific denial of the facts that are to be found in the joint affidavit of service referred to in the affidavit in opposition. I have asked the learned advocate appearing on behalf of the appellant to point out the record which shows that Sohanlal Ruia was not served as stated in the said affidavit, but Mr. Tebriwala was not able to point out any such record. In an affidavit dated 7th of January, 1958 it has been admitted on behalf of the appellant that in 1956 a search was made of the records in this case. The appellant was therefore, not unaware of the existence of the said affidavit In any event, it was distinctly mentioned in the affidavit in opposition.

6. I shall now proceed to deal with the affidavit of service affirmed by Ratanlal Saraf and Profulla Ranjan Pal dated 31st March, 1950, a copy of which is set out in the Paper Book at pages 59 to 60. It appears from the said affidavit that one Profulla Ranjan Pal, a clerk in the employ of Messrs. Chain Chandra Basu, attorneys for the respondent, accompanied by one Ratanlal Saraf, an agent of the respondent, went to serve the notice under Section 14(2), upon the appellant on the 6th day of March, 1950. They say that upon arriving at No. 18, Armenian Street where the appellant carries on business, they met Sohanlal Ruia who was identified by Ratanlal Saraf. Thereupon Prafulla Ranjan Pal showed the original notice to Sohanlal Ruia who accepted the copy of the said notice but refused to sign on the back of the original notice. No copy of the notice was thereupon affixed upon the front door of the premises.

7. It is quite clear that regard being had to the materials placed before tie Court, there should be no hesitation in accepting the affidavit of service as correctly stating the facts as they took place. The conduct of the appellant in filing various petitions and affidavits containing inconsistent allegations, merely serve to show that the denial of service is not only half-hearted but not worthy of credence. That being so, the next thing to be considered is as to whether, taking the facts as stated in the affidavit of service to be true, there was a valid service or not, that is to say, a service in accordance with law. I have already stated that the Arbitration Act does not provide for the mode of service. This is provided for in Rules framed by this Court under Section 44 of the said Act, which again refer to the service of summons under the Code of Civil Procedure. It will therefore have to be considered as to whether the service is a valid one, considering the notice to be like a writ of summons, issued and served in accordance with the provisions of the Code of Civil Procedure. The subject of the issue and service of summons is dealt with in Order V of the Code of Civil Procedure. Rule 10 of Order V lays down that service of summons shall be made by delivery or tendering a copy thereof signed by the Judge or such officer as is appointed on this behalf under the seal of the Court. Rule 12 lays down that wherever it is practicable, service shall be made on the defendant' in person unless he has an agent empowered to accept service in which case service on such an agent shall be sufficient. Order 30 Rule 3 provides that where persons are sued as partners in the name of their firm a summons may be served upon any one or more of the partners. Rule 16 of Order V provides that where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to his agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered with an acknowledgment of service endorsed on the original summons. The wordings of Rule 17 are important and the relevant part is set out below:

'Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the persons (if any) by whom the house was identified and in whose presence the copy was affixed.'

8. The position therefore is as follows: The notice under Section 14(2) was to be served like a writ of summons on the partnership firm. It was permissible to serve it on Sohanlal Ruia who is a partner of the said firm. When the notice was sought to be served upon him, he was found present and the serving officer showed the original notice to Sohanlal Ruia and he accepted a copy of the said notice but when he was asked to sign the acknowledgment he refused to do so. Coming back to Rule 17 of Order V. we find that where the defendant or his agent refuses to sign the acknowledgment then the serving officer is required to affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant personally resides or carried on business etc. Then, the original is to be returned to the Court with a report. As I have stated above, in this case admittedly there was no affixation. The whole question is whether the service of the notice has been rendered defective for want of affixation. Before I deal with the point I must refer to a finding by the court below that under the original side rules one copy of the writ of summons is prepared and issued for each defendant and that normally an attorney is not called upon to provide the serving officer with more than one copy for each defendant as he cannot anticipate that the defendant while accepting a copy will refuse to sign an acknowledgment of service. This finding is not disputed before us.

9. Upon this point there is a conflict of opinion. InGaneshmal Bhaworlal v. Kesoram Cotton Mills Ltd. : AIR1952Cal10 Bachawat, J. has held that where the defendant retains a copy ofthe notice without signing the acknowledgment ofservice and the copy of the summons is not affixedon the outer door of the house where the defendantpersonally resides or works for gain, there is no service at all as contemplated by Order V Rule 17 ofthe Civil Procedure Code, the provisions of whichare mandatory. The learned Judge held that Rule 17of Order V enjoins the affixation of a copy, ifsignature to an acknowledgment of service is refused. Service was not completed simply because acopy is tendered or delivered. Signature of the defendant to the acknowledgment of service must beobtained and when he refuses to do so, a copy mustbe affixed on the outer door. The facts in that casewere as follows: There were disputes between thepetitioner firm Ganeshmal Bhaworlal and Kesoram Cotton Mills Ltd. The disputes were eventually referred to the Arbitration of the Indian Chamber of Commerce. The Tribunal of Arbitration made anaward in favour of the respondent on the 5th July,1949. The award was filed in court and on the 18thJanuary, 1950 notice of such filing was issued by theRegistrar. A clerk in the employ of the attorneysfor the respondent, went to Raipur for serving thepetitioner firm. There were three partners of thesaid firm, Ganeshmal, Bhairudan and Hastimal andthey were all present there. Three several copies ofthe notice were tendered to and accepted by thesethree partners, but all of them refused to sign anacknowledgment of service. The original notice wasreturned to the court along with the affidavit of theprocess server and of the identifier. The petitioners did not appear at the time or the passing ofthe decree upon award. On the 28th February,1950 this court pronounced judgment in accordancewith the award and a decree followed. An application was made for setting aside the decree. It washeld by the learned Judge that there was no validservice of the notice. It was held that under Rule 17 of Order V, the provision as to affixation was imperative and obligatory under the circumstances. Theprovision was not directory nor was it an instanceot irregular service. In fact, the learned Judge wentso far to say that the affixation itself was the service or at least the most essential part of the service.Its object was to give due publicity to the act of theprocess-server and to impress the party that a formalservice has been effected. As there was no affixationthere was no service under Rule 17. According tothe learned Judge, if there was no affixation thedefendant might well believe that he was able toignore the service and to treat it as of no legaleffect, and a defendant, who was not duly servedwith a summons in a suit had a statutory right tohave an ex parte decree Set aside under Order 9 Rule30. The learned Judge has examined a number ofauthorities and dealt with many kinds of casesnamely, where the defendant does not retain a copy or where a copy is simply left at the defendant'sresidence when he is not found. According to him,there was no distinction between a case where thedefendant refuses to accept a copy and a case wherethe defendant retains a copy. According to thelearned Judge, under the circumstances similar tothat prevailing in the present case, the proper procedure would be to apply for substituted service underRule 20 of Order V. In the trial court, Mitter J. differed with the view expressed by Bachawat J. as mentioned above. According to the learned Judge, the obtaining of the requisite signature of acknowledgment of service was not a mode of service but only a proof thereof. The acceptance of a copy of the notice of summons given personally to the defendant is sufficient for the purposes of Order V Rule 10, but it was nevertheless the duty of the serving officer to require the person served to sign the original summons in acknowledgment of service. The serving officer cannot compel the defendant to give such acknowledgment and his obligation to affix copy on the outer door only arises when the defendant refuses to accept service. The learned Judge said as follows:

'With great respect to His Lordship I venture to hold that obtaining the requisite signature of acknowledgment of service is not a mode of service but only proof thereof. 'Service' according to the Oxford Dictionary means 'legal serving of or of writ etc. 'delivery with announcement of contents to person affected'. As I have already pointed out, the acceptance of a copy of the notice or summons given personally to the defendant is sufficient for the purpose of Order 5 Rule 10 but it is nevertheless the duty of, the serving officer to require the person served to sign the original summons in acknowledgment of service. The serving officer cannot compel the defendant to give such acknowledgment and his obligation to affix a copy on the outer door only arises when the defendant refuses to accept service......... I find myself unable to endorse the view of Bachawat. J. that 'Rule 17 enjoins the affixation of a copy if such signature is refused'. In my view. Rule 17 only enjoins the affixing when the defendant refuses to accept service or when he is absent from his residence or there is no likelihood of his being found at his residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf nor any other person upon whom service can be made.' (10) It appears plain that the two views are wide apart and cannot be reconciled. According to Bachawat, J. the affixation itself is the service, so that tendering a copy of the summons and delivering the same to the defendant will not constitute a valid service, even where the defendant accepts the copy and retains it On the other hand, according to Mitter J., affixation is only required where there is refusal to accept' service. Thus, where a copy of the summons is delivered personally to the defendant and he accepts it, the service is complete. It is true that the serving officer should ask for an acknowledgment of service on the original summons but the serving officer cannot compel the defendant to give such acknowledgment and his obligation to affix a copy only arises when the defendant refuses to accept service. When a copy of the summons has been delivered personally to the defendant and has been accepted by him it cannot be said that he has I refused to accept service. Therefore, in such a case affixation is not an essential part of the service, in the absence of which it will be rendered illegal. With great respect, I am unable to accept the view expressed by Bachawat, J. and will proceed to give my reasons. In Hope v. Hope. (18541 4 De G. M. and G. 328 at p. 342 Lord Cranworth L. C. said as follows:

'The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.'

In Kistler v. Tettmar, 1905-1 KB 39 at p. 45 Mathew L. J. said that the only object of the rule requiring personal service was that the party should know what the order was. In Porter v. Freudenberg, (1915) 1 KB 857 at p. 888 Lord Reading held that substituted service might be permitted if it was clearly shown that the plaintiff was in fact, unable to effect personal service and that the writ was likely to reach the defendant or to come to his knowledge if the method of substituted service which was asked for by the defendant was adopted. Although the mode ot service under the rules of the Supreme Court in England are not identical with that prevailing in our Courts, the provisions for service of summons in the Civil Procedure Code are based on the English procedure. The first thing necessary for the service of a notice or summons is to bring it to the notice and knowledge of the party who is to be served. That is the essential part of the whole operation of serving notice. It is one of the cardinal principles relating to service of such a notice or summons that, so far as possible it should be served personally on the defendant. But, provisions have been made for service where the defendant is not present or cannot be found in spite of due diligence. Where the defendant is personally present, the procedure laid down for service upon him, is intended to ensure that he is properly apprised of the existence of the notice of summons which is intended to be served upon him and it is made available to him. to examine the contents thereof. If this is satisfactorily done, then the rest is merely a ritual. It is true that where a procedure is laid down, it must be followed, unless there is a proper excuse for not following it But one must not make the process of service a mere ritual which ignores the real object of service and rests on mere technicalities, where the defendant is present, the procedure is quite simple. He is shown the original notice of summons and a copy thereof is delivered to him or tendered to him. Then the serving officer requests him to sign as acknowledgment of service, to be endorsed on the original summons. Where the defendant refuses to sign the acknowledgment, then what is the position? If he was merely tendered a copy which is not accepted, that is to say, there is a copy in the possession of the serving officer which has not been delivered to the defendant, he affixes a copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business etc. With great respect I cannot subscribe to the view held by Bachawat J. that this affixation itself constitutes the service. Service consists of the delivery or tender of a copy of the summons to the defendant personally. If he does not accept delivery, that is to say, does not take the copy, and if the serving officer comes back without affixation of the copy, then the defendant would not be left with any means of familiarising himself with the contents of the notice or summons if he is inclined to do so. Where a copy is affixed to the outer door etc. two results are achieved. Firstly, he is put in a position, if he so wishes, to make himself acquainted with the contents of the notice or summons, and secondly, there is some publicity, which may be of assistance in proving the service if it is denied later on. Where, however, the defendant is not present personally the process of affixation becomes of paramount importance. The affixation of the notice in a conspicuous part of the house etc. ensures that the defendant would, when he returns to the said premises, notice the affixed document and would thereby come to know of the service. In such a case, it is not a mere ritual but forms the basis of service. Perhaps it is this aspect which Bachawat I., had in mind when he said that affixation itself constituted a service. But where a copy has been delivered to the defendant under Rule 16 of Order V, and he retains it, then the affixation of the copy loses all importance, for two reasons. Firstly, the basic reason for affixation has been achieved, since the defendant is put in possession of a document from which he can gather all the information that is required. Secondly, since the copy requires to be affixed and the copy itself has been delivered to the defendant who has accepted it, it is no longer of paramount importance that it should be affixed. Indeed, unless the serving officer has with him a number of notices, it is physically impossible for him to so affix a copy of the notice, for the simple reason that he no longer possesses a copy which is to be affixed. A number of cases have held that where a copy of the notice has been delivered to the defendant then the affixation is not essential. I shall presently enumerate them. The concept underlying these decisions is that it a defendant has been personally served with a copy of the notice, it being delivered to him and accepted by him, the serving officer has no longer a copy to affix and it is impossible for him to do so. Under such circumstances, if he does not do so, then it cannot be said that the service has not been effected or that it has become illegal. Where the serving officer goes with the notice or summons and delivers a copy thereof to the defendant personally, who retains it, then me essential formalities of service have been completed. The other rituals of service may be said to be unimportant and non-compliance should not vitiate the service. To insist on more would be to insist on mere technicalities, ignoring the substance of the matter.

11. Service of summons under Order V of the Code of Civil Procedure gives rise to a number of diverse situations. Either the defendant is found or her is absent. If he is absent, either an agent or somebody is found upon whom service can be effected under the law, or that no one can be found. The provisions of Order V provide for all these contingencies. In this case, we are not concerned with all of them. Here the defendant Sohanlal Ruia was present and he was shown the original notice and he was given a copy thereof which he accepted. He was then asked to sign an acknowledgment of service but he refused to do so. It is in the background of these facts alone that we have to consider whether the service is sufficient. It is unnecessary therefore, to lay down any general formula applicable to all circumstances. As this precise situation has occurred in a number of cases and have been judicially considered, I shall proceed to consider the same.

12. The first case to be considered is a Division Bench judgment of the Patna High Court Nageshwar Bux Rai v. Bisheswar Dayal, AIR 1924 Pat 446. Foster J. said as follows:

'I am of opinion that the provisions of Rules 17 and 19 of Order V of the Civil Procedure Code are not rigid. Where a defendant upon whom a summons has been served retains the copy that is put into his hands and refuses to give an acknowledgment it makes it impossible for the peon to affix that copy to the house. The alternative would he that in anticipation to such contumacious conduct on the part of the defendant there should be sent out in every case a spare copy for affixing to the house and for complying with the provisions of Rule 17. That I do not think was ever intended to be a rule of procedure ............ it appears to me to be by no means a strained interpretation of the law to consider that Rule 19 enables a Court, in such circumstances as I am referring to, to declare the summons has been duly served............'

13. Jwala Prosad J., in the same case held that the defendant had by his conduct rendered it impossible to have the notice affixed on the house and he could not be permitted to take advantage of his own wrong and to plead that the omission rendered the service invalid. The next case to be considered is a decision of Chagla J., in M. R. Ved and Co. v. S. B. Hayeem, AIR 1943 Bom 340. This was a very curious case. The affidavit of service showed that the special bailiff and the identifier went to serve the writ of summons. A copy of the summons was given to the defendant, but he ran away with it. The special bailiff had no other copy of the summons and it was impossible for him to affix a copy on the outer door. The question was as to whether under these circumstances there was a proper service on the defendant Chagla I, relied on the Patna decision cited above and held that the service was good. The next case to be considered is also a Bench decision of the Patna High Court Dundbahadur Singh v. Durga Prosad Singh. : AIR1953Pat346 . In this case also, a copy of the summons was handed over to the defendant but he refused to acknowledge service or grant a receipt. Thereupon, no affixation was made. The question was whether there was a valid service. The very same objection was raised as has been raised in this case, namely, that under Order V Rule 17, it was mandatory to affix a copy of the notice and unless this was done the service was defective. The learned Judges relied on the Bench decision of the Patna High Court cited above and held that the service was in order. In another case, Jwala Prosad J. had again to deal with service of summons under Order V Rule 17 Sudhansu Bhattacharyya v. Patna City Municipality AIR 1932 Pat 150. In that case, what happened was that the serving peon offered the writ of summons to the defendant but no copy thereof was handed over. The defendant refused to acknowledge service and no copy was affixed. This was held to be a bad service. In fact, the learned Judge referred to his earlier judgment in Nageshwar Bux Rai's case AIR 1924 Pat 446 (supra) and pointed opt the difference. In one case, the copy was handed over and there was no other copy to affix, whereas in the other case the serving peon had with him the copies but failed to affix the same. Where the serving officer has the copy and is in a position to affix it, the affixation must be made. To that extent, the provision for affixation is not a superfluity but is one that must be complied with. It is equally clear that if the defendant himself makes it impossible for a copy to be affixed, and this includes the case where he has received the only copy in the possession of the serving officer and does not return it. then he cannot be heard to say that the copy should have been affixed.

14. The very same view has been expressed by the Punjab High Court in Rishi Kesh v. Kidar Nath, . In that case also, the process server delivered a copy of the summons and a copy of the plaint to the defendant but the defendant declined to acknowledge service of summons. No affixation was made and the question was whether the service was in accordance with law. The court below had held that when the defendant declined to accept service of notice, it was obligatory to the process server to affix the copy of the process to the outer door of the house of the defendant as required by the provisions of Order V Rule 17 of the Code of Civil Procedure, and as these provisions had not been complied with, the service was bad. This decision was overruled in revision by Bhandari C. J. who held that the service had been made in accordance with law. Before concluding I must refer to a Supreme Court decision which has been cited before us Nilkantha Sidramappa v. Kashinath Somanna, : [1962]2SCR551 . In that case, a suit for partition had been filed in court and was referred to arbitration by consent of the parties. The arbitrators made an award and on August 24, 1949 the Civil Judge ordered that the award be filed. No notice in writing was issued by the Court to the appellant or his guardian intimating that the award had been filed in Court. What happened was, however, that the court in the presence of the pleaders of the parties mentioned the fact that the award had been filed and the matter was adjourned for objections to be filed. It was held by the Supreme Court that where there was an arbitration through court there was no provision for giving written notice of the filing of the award. It was sufficient to give verbal notice and therefore, the question of service of such a notice did not arise. In the present case, however, the arbitration was not through court. Therefore, it does not throw much light on the problem which has arisen in this case, save and except that it is noteworthy that one of the reasons which weighed with their Lordships was that the party complaining of non-service had knowledge of the filing of the award and had taken part in the subsequent proceedings and yet attempted to challenge the same. The challenge was not allowed. This only shows that in such a case technicalities should be avoided.

15. For the reasons aforesaid, I must hold that the appellant was duly served with notice under section 14(2) of the Arbitration Act, of the filing of the award and therefore, his application for setting aside the award was not within time and has been rightly dismissed by the Court below.

16. Accordingly the appeal fails and must be dismissed with costs.

A.C. Sen, J.

17. I agree.