1991 (3) TMI 314 - HC - Companies Law

Summary

Issues Involved:

1. Validity of service of summons on the opposite party.
2. Interpretation of service of summons under Order 29, Rule 2, Civil Procedure Code (CPC) vis-`a-vis Section 51 of the Companies Act.
3. Justification for setting aside the ex parte decree.
4. Limitation for filing an application under Order 9, Rule 13, CPC.

Detailed Analysis:

1. Validity of Service of Summons on the Opposite Party:

The petitioner filed a suit for eviction on grounds of reasonable requirement and damage to the premises. Summons were sent to the opposite party tenant by both bailiff and registered post. The summons sent by registered post was returned with the endorsement "refused," leading to an ex parte decree. The opposite party later contended that the summons was fraudulently suppressed, and the office was temporarily closed, making the service of summons invalid. The trial judge initially found the summons to be duly served, but the appellate judge reversed this, leading to the current revision petition.

2. Interpretation of Service of Summons under Order 29, Rule 2, CPC vis-`a-vis Section 51 of the Companies Act:

Order 29, Rule 2, CPC, specifies that summons may be served on a corporation by sending it to the registered office or where the corporation carries on business. However, Section 51 of the Companies Act mandates that documents (including summons) must be served at the registered office of the company. The appellate judge held that service at the branch office did not comply with Section 51, rendering the service invalid. The petitioner argued that service at the business premises should suffice, but the court emphasized that compliance with Section 51 is mandatory for limited companies.

3. Justification for Setting Aside the Ex Parte Decree:

The appellate judge found that the office of the opposite party was closed from March 1984 to November 1985, corroborated by the testimony of C.S. Baby. The trial judge had dismissed this testimony, but the appellate judge accepted it, leading to the conclusion that the summons was not duly served. The appellate court's finding of fact, based on evidence, was upheld, and the ex parte decree was set aside due to non-service of summons at the registered office.

4. Limitation for Filing an Application under Order 9, Rule 13, CPC:

The opposite party filed the application under Order 9, Rule 13, CPC, on December 16, 1985, after discovering the ex parte decree on November 22, 1985. The petitioner argued that the application was barred by limitation as it was filed more than 30 days after November 13, 1985, when the opposite party allegedly became aware of the dispossession. However, the court held that limitation starts from the date of knowledge of the decree, which was November 22, 1985. The application was therefore within time, and the appellate judge's decision to set aside the ex parte decree was upheld.

Conclusion:

The High Court dismissed the revision petition, affirming the appellate judge's decision to set aside the ex parte decree. The court emphasized the necessity of serving summons at the registered office of a limited company as per Section 51 of the Companies Act and found that the summons was not duly served. The application under Order 9, Rule 13, CPC, was filed within the limitation period from the date of knowledge of the decree. The parties were directed to bear their respective costs.