Harendra Nath Ghosal Vs. Superfoam Pvt. Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/861888
SubjectCivil;Company
CourtKolkata High Court
Decided OnMar-14-1991
Case NumberC.O. No. 315 of 1990
JudgeMonoranjan Mallick and Manabendra Nath Roy, JJ.
Reported in[1992]74CompCas740(Cal),95CWN888
ActsCompanies Act, 1956 - Sections 34 and 51; ;Code of Civil Procedure (CPC) , 1908 - Order 29, Rule 2
AppellantHarendra Nath Ghosal
RespondentSuperfoam Pvt. Ltd.
Appellant AdvocateSudhis Das Gupta, ;S.P. Roy Choudhury and ;Kamalesh Bhattacharjee, Advs.
Respondent AdvocateSamir Roy Choudhury, ;Dilip Kr. Mondal and ;Jaladhar Mondal, Advs.
DispositionRevision petition dismissed
Cases ReferredIn Panna Lal v. Murari Lal
Excerpt:
- m.r. mallick, j.1. this revision petition under section 115, civil procedure code, is directed against the order dated january 8, 1990, passed by the additional district judge, 8th court, alipore, in miscellaneous appeal no. 421 of 1988 arising out of miscellaneous case no. 44 of 1985 disposed of by the assistant district judge, 4th court, alipore. facts may be briefly stated as follows :2. the present petitioner as plaintiff filed t. s. no. 13 of 1985 in the court of the subordinate judge, 4th court, alipore, for eviction of the opposite party tenant on the ground of reasonable requirement and also on the ground of damaging a portion of the premises in suit. summons was sought to be served upon the present opposite party both through the bailiff as well as by registered post. as the summons of the suit was sent under registered post to the address of the tenanted premises and as the envelope came with the endorsement 'refused' and as the opposite party did not appear to contest the suit, the present petitioner obtained an ex parte decree from the learned trial judge on june 3, 1985. in execution of such decree, the petitioner obtained delivery of possession of the suit property on september 22, 1985, through the process server after breaking the padlock of the tenanted premises in terms of the order passed by the executing court. the opposite party-defendant thereafter filed an application on december 16, 1985, under order 9, rule 13, civil procedure code, along with an application filed under section 5 of the limitation act alleging, inter alia, that the plaintiff, with a mala fide intention, in collusion with the process server and the postal peon, suppressed the summons and registered notice upon the defendant-opposite party and obtained the decree on june 3, 1985, that due to some trouble in the business, the opposite party's office in calcutta had to close the operation of business temporarily and during the absence of the men of the defendant, the plaintiff hurriedly executed the decree and got possession of the premises and appropriated the articles and furniture worth huge amounts, that the officer of the defendant, only on november 13, 1985, came to calcutta and found that the landlord was in possession of the said property and, upon enquiry in the court on november 22, 1985, came to know about the ex parte decree. the present petitioner opposed the said application which was converted to miscellaneous case no. 44 of 1985. the learned trial judge before whom both the parties led oral and documentary evidence, by his order no. 39, dated june 25, 1988, dismissed the miscellaneous case together with the petition under section 5 of the limitation act on the finding that summons had been duly served upon the present opposite party and that the application under order 9, rule 13, civil procedure code, was, therefore, liable to be dismissed as there was no sufficient ground for condonation of the delay in filing the application.3. being aggrieved, the present opposite party preferred an appeal and the learned appellate judge in miscellaneous appeal no. 421 of 1988, by his judgment and order dated january 8, 1990, allowed the appeal and set aside the ex parte decree in t. s. no. 13 of 1985.4. being aggrieved, the present revision petition has been filed.5. the appeal has been contested by the opposite party tenant. it is urged on behalf of the petitioner that the learned appellate judge committed a great illegality in reversing the finding of fact arrived at by the learned trial judge that summons under registered post was duly served. it is contended that even though there was no material for the learned appellate judge to come to the finding that the summons had been fraudulently suppressed, the learned appellate judge came to the finding without any evidence that the witness adduced by the petitioner not being in the' office of the opposite party at about the time when the summons was served or possession was taken, the learned trial judge ought not to have accepted the evidence of the said witness to come to the finding that, as the office of the opposite party was closed temporarily at about the time when the summons was served, there was no question of the summons by registered post to be tendered to any authorised person of opposite party no. 1, that the learned appellate judge failed to consider that, in the petition under order 9, rule 13, no whisper was made that, at about the time when the summons was served, the office of the opposite party was closed and that the learned appellate judge also illegally held that section 51 of the companies act would govern the service of the summons upon a limited company governed by the companies act and when no such summons was served on the registered office of the opposite party, there was no valid service of summons upon the opposite party. it is also urged that there was no sufficient explanation as to why even after coming to know about the dispossession on november 13, 1985, the application under order 9, rule 13 was filed on december 16, 1985, that is more than 30 days from the date of alleged knowledge and, even on that ground, the application ought to have been dismissed as being barred by limitation.6. on behalf of the respondent, it has been submitted that the learnedappellate judge was perfectly justified in reversing the finding of thelearned trial judge as in effect there was no proper service of summonsupon the opposite party which is a private limited company registeredunder the companies act and, in the case of such a company, the summonshas to be served in view of section 51 of the companies act at the registeredoffice, that the premises which the opposite party was occupying as atenant under the present petitioner was merely a branch and sales officeand not the registered office. therefore, even if it be conceded that thesummons under registered post was sent to the tenanted address, thesummons not having been sent to the registered office of the oppositeparty, there was no service of summons on the opposite party and, onthat ground alone, the ex parte decree was liable to be set aside. it is alsosubmitted that there was sufficient evidence adduced before the learnedtrial judge that the office of the opposite party was temporarily closedin between march, 1984, and november, 1985, and that the learned appellate judge came to the finding of fact on the basis of the evidence andin this revision petition under section 115, civil procedure code, thiscourt cannot sit as a court of appeal and reverse such finding of fact onevidence. it is also submitted that when only on making an appropriatesearch in the court on november 22, 1985, the opposite party came tolearn of the ex parte decree and the present application has been filedon december 16, 1985, the petition cannot be held to be barred by limitation. 7. as regards the service of summons on a limited company, the provisions of order 29, rule 2, have to be looked into. rule 2 reads as follows :'2. service on corporation.--subject to any statutory provision regulating service of process, where the suit is against corporation, the summons may be served-- (a) on the secretary, or on any director, or other principal officer of the corporation, or(b) by leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office then at the place where the corporation carries on business.' 8. mr. dasgupta, appearing for the petitioner, submits that the expression 'corporation' in rule 2 includes a company which is constituted under section 34 of the companies act, 1956. he submits that, under clause (b) of rule 2, summons may be served either at the registered office of the company or at the place where the corporation carries on its business. he submits that 'if there is no registered office' used in clause (b), cannot mean that the summons can be served at the business premises of a limited company only when there is no registered office of the limited company. he submits that, under section 34 of the companies act, there cannot be a company without a registered office. therefore, the relevant portion of clause (b) will have to be interpreted as meaning that where the limited company carries on business at a place other than its registered office, the summons can be served even at that place even though such premises are not the registered office of the company. he, therefore, submits that even if the premises in which the opposite party is carrying on business as a tenant under the petitioner were not their registered office, under clause (b) of rule 2 of order 29, civil procedure code, a summons could be served at that office. it is submitted that the petitioner was not aware as to where the registered office of the opposite party was situated and that, in the circumstances, the summons was served in the premises where the private limited company was carrying on its business at calcutta and, therefore, sending the summons of the suit to the said address by registered post was proper compliance of service of process upon a limited company ; that when the said summons sent to the said business premises of the opposite party was returned by the postal peon with the endorsement 'refused', then, in view of the provisions of section 27 of the general clauses act, there is a presumption of due service of summons and the said presumption has not been properly rebutted by the present opposite party by leading the evidence of mr. nagarajan who was in charge of the calcutta office of the opposite party at about the time when the summons was sent by registered post, and that the learned trial judge was perfectly justified in holding that the summons was duly served upon the opposite party by registered post and the learned appellate judge committed a great illegality in reversing that finding. on this point, he has referred to a recent decision of the supreme court in madan and co. v. wazir jaivir chand, : air1989sc630 , where the supreme court has reiterated that, when a summons was sent to the proper address of the addressee by registered post and tendered with the postal authority for service, then the presumption of service arises under section 27 of the general clauses act. such presumption, even though rebuttable, has to be rebutted by the other side by leading sufficient evidence.9. on perusal of the record of the learned trial judge, we find that the learned trial judge caused service of summons both by the bailiff as well as by registered post. the order-sheet of the learned trial judge revealed that he did not find the service of summons upon the opposite party through the bailiff to be satisfactory. but, on accepting the service of summons through registered post which was returned with the endorsement 'refused' by the postal authority, the learned trial judge fixed a date for ex parte hearing on the ground that the opposite party did not appear to contest the suit. therefore, in this case, we are only concerned with whether the summons by registered post has been duly served or not.10. on behalf of the opposite party, it is contended that rule 2 of order 29, civil procedure code, clearly indicates that the provision of rule 2 is not exhaustive but this is subject to any statutory provision regulating the service of process upon the corporation. it is contended that section 51 of the companies act contains such statutory provision regulating the service of documents on a limited company which includes summons and such specific provision would prevail over rule 2 of order 29 and, secondly, the learned appellate judge was perfectly justified in holding that the summons was not served upon the opposite party at its registered office as provided in section 51 and, therefore, it is crystal clear that there was non-service of summons upon the defendant opposite party and the ex parte decree was, therefore, liable to be set aside.11. section 51 of the companies act, which deals with service of documents on companies enjoins that a document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post or by leaving it at its registered office. that the expression 'document' used in section 51 of the companies act includes summons is clear from section 2(15) of the companies act. the 'document', in view of. section 2(15) of the companies act, includes summons, notices, requisition, order, other legal processes and registers whether issued, sent or kept in pursuance of this or any other act or otherwise. in that view, we are satisfied that the learned appellate judge was perfectly justified that when rule 2 of order 29 provides for service of process in a suit against a corporation subject, however, to any statutory provision regulating such service, in the matter of service of summons on a limited company, the provision of rule 2 of order 29 shall be subject to section 51 of the companies act. the result is that the provision of section 51 would prevail over rule 2 of order 29, civil procedure code. therefore, a summons on a limited company has to be served at its registered office in terms of section 51 of the companies act. in this particular case, it is not the case of the petitioner that the premises in the suit was the registered office of the opposite party. it is sought to be argued on behalf of the petitioner that the petitioner was not aware of the registered office of the opposite party company. but, such a contention is riot at all acceptable. the plaintiff filing a suit against a company registered under the companies act has to cause the service of summons strictly in terms of section 51 of the companies act. when a private limited company, for the purpose of their branch and sales office at calcutta, took tenancy of the premises from the present, petitioner for starting a sales or branch office there, it was for the plaintiff to properly ascertain and be satisfied about the address of its registered office because, in the case of any proceeding to be initiated against the limited company in a court of law, the service of summons or notices have all to be served at the registered office of the company in terms of section 51 of the companies act. admittedly, in this case, no such summons was served on the registered office of the opposite party. it is submitted on behalf of the petitioner that such office was never disclosed and that even though in a criminal proceeding, the registered office was disclosed as at a place in the state of kerala. the notice of this revision case, on being served upon the opposite party at that address, was returned 'unserved'.12. we are of the view that it is not material that the opposite party did not disclose to the petitioner the address of the registered office. it is the mandate of law that a summons on a limited company has to be served at its registered office in accordance with section 51 of the companies act and when that has not been followed in this case, then it must be held that the summons on the opposite party of the suit was not duly served on the opposite party and there is, admittedly, a non-service of summons upon the opposite party at the address of its registered office.13. mr. dasgupta has submitted that summons under clause (b) of rule 29 could be served in the premises in suit even though it was not the registered office of the opposite party. in view of the above, we are unable to accept the above contention of mr. dasgupta. mr. dasgupta submits that a limited company must have a registered office and clause (b) in the second part must be interpreted as permitting the service of summons at any business place of the limited company other than its registered office.14. we are of the view that rule 2 of order 29 provides for service of summons and notices upon corporations. even though a company governed by the companies act includes within its definition a corporation, as the legal concept of a company is a corporation aggregate, the expression 'corporation' has not been defined in the civil procedure code. therefore, the dictionary meaning of corporation would have to be used in interpreting rule 2. apart from corporation aggregate, there is the legal concept of corporation sole constituting a single individual. moreover, the expression 'corporation' could also include a statutory corporation established by any law for the time being in force in india. therefore, in respect of such types of corporations, there may not be a registered office and the second part of clause (b) contemplates the service of summons or notices upon such a corporation having no registered office. in respect of such corporations, summons at the place where the corporation carries on business would be sufficient compliance under rule 2 of order 29, civil procedure code. but, so far as a limited company is concerned, the service of summons has to be effected in terms of section 51 of the companies act and, in this case, when, admittedly, there was no service of summons upon the registered office of the opposite party, there was no valid service of summons upon the opposite party.15. even assuming that the summons could have been served in the premises in suit where the defendant was running an office occupying the, same as a tenant under the present petitioner, we have grave doubts as regards whether the said summons by registered post was riot duly served or not. before the learned trial judge, the petitioner examined one c.s. baby who has stated in his evidence that from march, 1984, to november, 1985, the company was temporarily closed and nobody was available at its office at calcutta and it was under lock and key during that period. he has further stated that only on november 22, 1985, he came to know about the existence of the decree against the opposite party, that on november 13, 1985, he wanted to enter the office when he noted that their lock was changed, that he called the landlord who was not telling clearly and that, thereafter, he lodged a g. d. entry at the thana.16. on behalf of the petitioner, it is urged that the learned trial judge rightly disbelieved this testimony as he was admittedly not posted in the calcutta office at about the time when the summons was served by registered post and, therefore, he was not competent to depose about the facts prior to november, 1985, when, according to him, he, for the first time, came to calcutta to join the calcutta office in november, 1985.17. mr. dasgupta submits that, at the material time, mr. nagarajan was the officer-in-charge of the calcutta office, that even in november, 1985, he came to the sales tax office in calcutta representing the opposite party company and that the failure of the opposite party to examine nagarajan before the learned trial judge was fatal and that the learned trial judge, therefore, rightly disbelieved the testimony of pw-1, c.s. baby. we are of the view that the court of revision cannot interfere with the finding of fact based on evidence by the appellate court which is the first court of fact. the appellate court, on appreciating the evidence adduced by the parties, accepted the opposite party's story that their office was closed between march, 1984, and november, 1985. mr. dasgupta has submitted that such a case was not made out in the petition and was made only in evidence. but, on considering the evidence of the present petitioner in the proceeding under order 9, rule 13, civil procedure code, we find that the present petitioner who was himself residing on the upper floor of the premises admitted in his evidence that, at about the material time, the office of the opposite party in calcutta remained closed for most of the time. he has not in his evidence stated specifically that, even at about the time summons was alleged, to have been served by registered post in the calcutta office of the opposite party, the office of the opposite party remained opened. when the opposite party was living in the same premises, he could have definite knowledge as to whether, when the summons was allegedly served in the premises in suit by the postal authorities, the office of the opposite party was open and there were some competent persons on behalf of the opposite party to whom the summons could be tendered and refused.18. in the circumstances, the learned appellate judge did not commit any illegality by accepting the testimony of c.s. baby that the calcutta office of the opposite party remained temporarily closed from march, 1984, to november, 1985.19. if the office of the opposite party at calcutta was closed at about the time when the postal peon was alleged to have tendered the summons at the said office, then there could definitely be nobody either to accept or to refuse the tender. in that view, the presumption of service must be held to have been duly rebutted by this very strong circumstance negativing valid tender and refusal of the summons through the postal authorities.20. the petitioner has alleged that, on november 13, 1985, the representative came to calcutta and found that the lock of the office has been changed, that, thereafter, on november 26, 1985, the opposite party came to ascertain about the ex parte decree and, within 30 days thereof, the present application has been filed. on behalf of the petitioner, it is urged that there is no explanation as to why, within 30 days of november 13, 1985, the application was not filed. once it is found that the summons has not been duly served under article 123 of the limitation act, 1963, then the time from which the limitation is to be reckoned is the date of the knowledge of the decree. pw-1 has, in his evidence, stated that, on november 13, 1985, when he met the landlord, he was not given a satisfactory answer and it is only on november 22, 1985, that he came to know for the first time about the existence of the decree. in panna lal v. murari lal, air 1967 sc 1384, the supreme court has held that when summons has not been duly served, limitation does not start running against the, defendant because he has received some vague information about a decree being passed against him and the knowledge of the decree means the knowledge of the particular decree sought to be set aside. in that view, we are unable to interfere with the judgment and order passed by the learned appellate judge allowing the miscellaneous appeal and setting aside the ex parte decree passed in t. s. no. 13 of 1985. the revision petition is, therefore, dismissed. in the circumstances of the present case, we direct the parties to bear their respective costs themselves.m.n. roy, j.21. i agree.
Judgment:

M.R. Mallick, J.

1. This revision petition under Section 115, Civil Procedure Code, is directed against the order dated January 8, 1990, passed by the Additional District Judge, 8th Court, Alipore, in Miscellaneous Appeal No. 421 of 1988 arising out of Miscellaneous Case No. 44 of 1985 disposed of by the Assistant District Judge, 4th Court, Alipore. Facts may be briefly stated as follows :

2. The present petitioner as plaintiff filed T. S. No. 13 of 1985 in the Court of the Subordinate Judge, 4th Court, Alipore, for eviction of the opposite party tenant on the ground of reasonable requirement and also on the ground of damaging a portion of the premises in suit. Summons was sought to be served upon the present opposite party both through the bailiff as well as by registered post. As the summons of the suit was sent under registered post to the address of the tenanted premises and as the envelope came with the endorsement 'refused' and as the opposite party did not appear to contest the suit, the present petitioner obtained an ex parte decree from the learned trial judge on June 3, 1985. In execution of such decree, the petitioner obtained delivery of possession of the suit property on September 22, 1985, through the process server after breaking the padlock of the tenanted premises in terms of the order passed by the executing court. The opposite party-defendant thereafter filed an application on December 16, 1985, under Order 9, Rule 13, Civil Procedure Code, along with an application filed under Section 5 of the Limitation Act alleging, inter alia, that the plaintiff, with a mala fide intention, in collusion with the process server and the postal peon, suppressed the summons and registered notice upon the defendant-opposite party and obtained the decree on June 3, 1985, that due to some trouble in the business, the opposite party's office in Calcutta had to close the operation of business temporarily and during the absence of the men of the defendant, the plaintiff hurriedly executed the decree and got possession of the premises and appropriated the articles and furniture worth huge amounts, that the officer of the defendant, only on November 13, 1985, came to Calcutta and found that the landlord was in possession of the said property and, upon enquiry in the court on November 22, 1985, came to know about the ex parte decree. The present petitioner opposed the said application which was converted to Miscellaneous Case No. 44 of 1985. The learned trial judge before whom both the parties led oral and documentary evidence, by his order No. 39, dated June 25, 1988, dismissed the miscellaneous case together with the petition under Section 5 of the Limitation Act on the finding that summons had been duly served upon the present opposite party and that the application under Order 9, Rule 13, Civil Procedure Code, was, therefore, liable to be dismissed as there was no sufficient ground for condonation of the delay in filing the application.

3. Being aggrieved, the present opposite party preferred an appeal and the learned appellate judge in Miscellaneous Appeal No. 421 of 1988, by his judgment and order dated January 8, 1990, allowed the appeal and set aside the ex parte decree in T. S. No. 13 of 1985.

4. Being aggrieved, the present revision petition has been filed.

5. The appeal has been contested by the opposite party tenant. It is urged on behalf of the petitioner that the learned appellate judge committed a great illegality in reversing the finding of fact arrived at by the learned trial judge that summons under registered post was duly served. It is contended that even though there was no material for the learned appellate judge to come to the finding that the summons had been fraudulently suppressed, the learned appellate judge came to the finding without any evidence that the witness adduced by the petitioner not being in the' office of the opposite party at about the time when the summons was served or possession was taken, the learned trial judge ought not to have accepted the evidence of the said witness to come to the finding that, as the office of the opposite party was closed temporarily at about the time when the summons was served, there was no question of the summons by registered post to be tendered to any authorised person of opposite party No. 1, that the learned appellate judge failed to consider that, in the petition under Order 9, Rule 13, no whisper was made that, at about the time when the summons was served, the office of the opposite party was closed and that the learned appellate judge also illegally held that Section 51 of the Companies Act would govern the service of the summons upon a limited company governed by the Companies Act and when no such summons was served on the registered office of the opposite party, there was no valid service of summons upon the opposite party. It is also urged that there was no sufficient explanation as to why even after coming to know about the dispossession on November 13, 1985, the application under Order 9, Rule 13 was filed on December 16, 1985, that is more than 30 days from the date of alleged knowledge and, even on that ground, the application ought to have been dismissed as being barred by limitation.

6. On behalf of the respondent, it has been submitted that the learnedappellate judge was perfectly justified in reversing the finding of thelearned trial judge as in effect there was no proper service of summonsupon the opposite party which is a private limited company registeredunder the Companies Act and, in the case of such a company, the summonshas to be served in view of Section 51 of the Companies Act at the registeredoffice, that the premises which the opposite party was occupying as atenant under the present petitioner was merely a branch and sales officeand not the registered office. Therefore, even if it be conceded that thesummons under registered post was sent to the tenanted address, thesummons not having been sent to the registered office of the oppositeparty, there was no service of summons on the opposite party and, onthat ground alone, the ex parte decree was liable to be set aside. It is alsosubmitted that there was sufficient evidence adduced before the learnedtrial judge that the office of the opposite party was temporarily closedin between March, 1984, and November, 1985, and that the learned appellate judge came to the finding of fact on the basis of the evidence andin this revision petition under Section 115, Civil Procedure Code, thiscourt cannot sit as a court of appeal and reverse such finding of fact onevidence. It is also submitted that when only on making an appropriatesearch in the court on November 22, 1985, the opposite party came tolearn of the ex parte decree and the present application has been filedon December 16, 1985, the petition cannot be held to be barred by limitation.

7. As regards the service of summons on a limited company, the provisions of Order 29, Rule 2, have to be looked into. Rule 2 reads as follows :

'2. Service on corporation.--Subject to any statutory provision regulating service of process, where the suit is against corporation, the summons may be served--

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office then at the place where the corporation carries on business.'

8. Mr. Dasgupta, appearing for the petitioner, submits that the expression 'corporation' in Rule 2 includes a company which is constituted under Section 34 of the Companies Act, 1956. He submits that, under Clause (b) of Rule 2, summons may be served either at the registered office of the company or at the place where the corporation carries on its business. He submits that 'if there is no registered office' used in Clause (b), cannot mean that the summons can be served at the business premises of a limited company only when there is no registered office of the limited company. He submits that, under Section 34 of the Companies Act, there cannot be a company without a registered office. Therefore, the relevant portion of Clause (b) will have to be interpreted as meaning that where the limited company carries on business at a place other than its registered office, the summons can be served even at that place even though such premises are not the registered office of the company. He, therefore, submits that even if the premises in which the opposite party is carrying on business as a tenant under the petitioner were not their registered office, under Clause (b) of Rule 2 of Order 29, Civil Procedure Code, a summons could be served at that office. It is submitted that the petitioner was not aware as to where the registered office of the opposite party was situated and that, in the circumstances, the summons was served in the premises where the private limited company was carrying on its business at Calcutta and, therefore, sending the summons of the suit to the said address by registered post was proper compliance of service of process upon a limited company ; that when the said summons sent to the said business premises of the opposite party was returned by the postal peon with the endorsement 'refused', then, in view of the provisions of Section 27 of the General Clauses Act, there is a presumption of due service of summons and the said presumption has not been properly rebutted by the present opposite party by leading the evidence of Mr. Nagarajan who was in charge of the Calcutta office of the opposite party at about the time when the summons was sent by registered post, and that the learned trial judge was perfectly justified in holding that the summons was duly served upon the opposite party by registered post and the learned appellate judge committed a great illegality in reversing that finding. On this point, he has referred to a recent decision of the Supreme Court in Madan and Co. v. Wazir Jaivir Chand, : AIR1989SC630 , where the Supreme Court has reiterated that, when a summons was sent to the proper address of the addressee by registered post and tendered with the postal authority for service, then the presumption of service arises under Section 27 of the General Clauses Act. Such presumption, even though rebuttable, has to be rebutted by the other side by leading sufficient evidence.

9. On perusal of the record of the learned trial judge, we find that the learned trial judge caused service of summons both by the bailiff as well as by registered post. The order-sheet of the learned trial judge revealed that he did not find the service of summons upon the opposite party through the bailiff to be satisfactory. But, on accepting the service of summons through registered post which was returned with the endorsement 'refused' by the postal authority, the learned trial judge fixed a date for ex parte hearing on the ground that the opposite party did not appear to contest the suit. Therefore, in this case, we are only concerned with whether the summons by registered post has been duly served or not.

10. On behalf of the opposite party, it is contended that Rule 2 of Order 29, Civil Procedure Code, clearly indicates that the provision of Rule 2 is not exhaustive but this is subject to any statutory provision regulating the service of process upon the corporation. It is contended that Section 51 of the Companies Act contains such statutory provision regulating the service of documents on a limited company which includes summons and such specific provision would prevail over Rule 2 of Order 29 and, secondly, the learned appellate judge was perfectly justified in holding that the summons was not served upon the opposite party at its registered office as provided in Section 51 and, therefore, it is crystal clear that there was non-service of summons upon the defendant opposite party and the ex parte decree was, therefore, liable to be set aside.

11. Section 51 of the Companies Act, which deals with service of documents on companies enjoins that a document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post or by leaving it at its registered office. That the expression 'document' used in Section 51 of the Companies Act includes summons is clear from Section 2(15) of the Companies Act. The 'document', in view of. Section 2(15) of the Companies Act, includes summons, notices, requisition, order, other legal processes and registers whether issued, sent or kept in pursuance of this or any other Act or otherwise. In that view, we are satisfied that the learned appellate judge was perfectly justified that when Rule 2 of Order 29 provides for service of process in a suit against a corporation subject, however, to any statutory provision regulating such service, in the matter of service of summons on a limited company, the provision of Rule 2 of Order 29 shall be subject to Section 51 of the Companies Act. The result is that the provision of Section 51 would prevail over Rule 2 of Order 29, Civil procedure Code. Therefore, a summons on a limited company has to be served at its registered office in terms of Section 51 of the Companies Act. In this particular case, it is not the case of the petitioner that the premises in the suit was the registered office of the opposite party. It is sought to be argued on behalf of the petitioner that the petitioner was not aware of the registered office of the opposite party company. But, such a contention is riot at all acceptable. The plaintiff filing a suit against a company registered under the Companies Act has to cause the service of summons strictly in terms of Section 51 of the Companies Act. When a private limited company, for the purpose of their branch and sales office at Calcutta, took tenancy of the premises from the present, petitioner for starting a sales or branch office there, it was for the plaintiff to properly ascertain and be satisfied about the address of its registered office because, in the case of any proceeding to be initiated against the limited company in a court of law, the service of summons or notices have all to be served at the registered office of the company in terms of Section 51 of the Companies Act. Admittedly, in this case, no such summons was served on the registered office of the opposite party. It is submitted on behalf of the petitioner that such office was never disclosed and that even though in a criminal proceeding, the registered office was disclosed as at a place in the State of Kerala. The notice of this revision case, on being served upon the opposite party at that address, was returned 'unserved'.

12. We are of the view that it is not material that the opposite party did not disclose to the petitioner the address of the registered office. It is the mandate of law that a summons on a limited company has to be served at its registered office in accordance with Section 51 of the Companies Act and when that has not been followed in this case, then it must be held that the summons on the opposite party of the suit was not duly served on the opposite party and there is, admittedly, a non-service of summons upon the opposite party at the address of its registered office.

13. Mr. Dasgupta has submitted that summons under Clause (b) of Rule 29 could be served in the premises in suit even though it was not the registered office of the opposite party. In view of the above, we are unable to accept the above contention of Mr. Dasgupta. Mr. Dasgupta submits that a limited company must have a registered office and Clause (b) in the second part must be interpreted as permitting the service of summons at any business place of the limited company other than its registered office.

14. We are of the view that Rule 2 of Order 29 provides for service of summons and notices upon corporations. Even though a company governed by the Companies Act includes within its definition a corporation, as the legal concept of a company is a corporation aggregate, the expression 'corporation' has not been defined in the Civil Procedure Code. Therefore, the dictionary meaning of corporation would have to be used in interpreting Rule 2. Apart from corporation aggregate, there is the legal concept of corporation sole constituting a single individual. Moreover, the expression 'corporation' could also include a statutory corporation established by any law for the time being in force in India. Therefore, in respect of such types of corporations, there may not be a registered office and the second part of Clause (b) contemplates the service of summons or notices upon such a corporation having no registered office. In respect of such corporations, summons at the place where the corporation carries on business would be sufficient compliance under Rule 2 of Order 29, Civil Procedure Code. But, so far as a limited company is concerned, the service of summons has to be effected in terms of Section 51 of the Companies Act and, in this case, when, admittedly, there was no service of summons upon the registered office of the opposite party, there was no valid service of summons upon the opposite party.

15. Even assuming that the summons could have been served in the premises in suit where the defendant was running an office occupying the, same as a tenant under the present petitioner, we have grave doubts as regards whether the said summons by registered post was riot duly served or not. Before the learned trial judge, the petitioner examined one C.S. Baby who has stated in his evidence that from March, 1984, to November, 1985, the company was temporarily closed and nobody was available at its office at Calcutta and it was under lock and key during that period. He has further stated that only on November 22, 1985, he came to know about the existence of the decree against the opposite party, that on November 13, 1985, he wanted to enter the office when he noted that their lock was changed, that he called the landlord who was not telling clearly and that, thereafter, he lodged a G. D. entry at the Thana.

16. On behalf of the petitioner, it is urged that the learned trial judge rightly disbelieved this testimony as he was admittedly not posted in the Calcutta office at about the time when the summons was served by registered post and, therefore, he was not competent to depose about the facts prior to November, 1985, when, according to him, he, for the first time, came to Calcutta to join the Calcutta office in November, 1985.

17. Mr. Dasgupta submits that, at the material time, Mr. Nagarajan was the officer-in-charge of the Calcutta office, that even in November, 1985, he came to the sales tax office in Calcutta representing the opposite party company and that the failure of the opposite party to examine Nagarajan before the learned trial judge was fatal and that the learned trial judge, therefore, rightly disbelieved the testimony of PW-1, C.S. Baby. We are of the view that the court of revision cannot interfere with the finding of fact based on evidence by the appellate court which is the first court of fact. The appellate court, on appreciating the evidence adduced by the parties, accepted the opposite party's story that their office was closed between March, 1984, and November, 1985. Mr. Dasgupta has submitted that such a case was not made out in the petition and was made only in evidence. But, on considering the evidence of the present petitioner in the proceeding under Order 9, Rule 13, Civil Procedure Code, we find that the present petitioner who was himself residing on the upper floor of the premises admitted in his evidence that, at about the material time, the office of the opposite party in Calcutta remained closed for most of the time. He has not in his evidence stated specifically that, even at about the time summons was alleged, to have been served by registered post in the Calcutta office of the opposite party, the office of the opposite party remained opened. When the opposite party was living in the same premises, he could have definite knowledge as to whether, when the summons was allegedly served in the premises in suit by the postal authorities, the office of the opposite party was open and there were some competent persons on behalf of the opposite party to whom the summons could be tendered and refused.

18. In the circumstances, the learned appellate judge did not commit any illegality by accepting the testimony of C.S. Baby that the Calcutta office of the opposite party remained temporarily closed from March, 1984, to November, 1985.

19. If the office of the opposite party at Calcutta was closed at about the time when the postal peon was alleged to have tendered the summons at the said office, then there could definitely be nobody either to accept or to refuse the tender. In that view, the presumption of service must be held to have been duly rebutted by this very strong circumstance negativing valid tender and refusal of the summons through the postal authorities.

20. The petitioner has alleged that, on November 13, 1985, the representative came to Calcutta and found that the lock of the office has been changed, that, thereafter, on November 26, 1985, the opposite party came to ascertain about the ex parte decree and, within 30 days thereof, the present application has been filed. On behalf of the petitioner, it is urged that there is no explanation as to why, within 30 days of November 13, 1985, the application was not filed. Once it is found that the summons has not been duly served under Article 123 of the Limitation Act, 1963, then the time from which the limitation is to be reckoned is the date of the knowledge of the decree. PW-1 has, in his evidence, stated that, on November 13, 1985, when he met the landlord, he was not given a satisfactory answer and it is only on November 22, 1985, that he came to know for the first time about the existence of the decree. In Panna Lal v. Murari Lal, AIR 1967 SC 1384, the Supreme Court has held that when summons has not been duly served, limitation does not start running against the, defendant because he has received some vague information about a decree being passed against him and the knowledge of the decree means the knowledge of the particular decree sought to be set aside. In that view, we are unable to interfere with the judgment and order passed by the learned appellate judge allowing the miscellaneous appeal and setting aside the ex parte decree passed in T. S. No. 13 of 1985. The revision petition is, therefore, dismissed. In the circumstances of the present case, we direct the parties to bear their respective costs themselves.

M.N. Roy, J.

21. I agree.