2016 (11) TMI 1725 - HC - Companies Law

Dishonor of Cheque - return of packet with the endorsement unclaimed - good service of statutory notice or not - HELD THAT - There is a well-established presumption that the return of packet with the endorsement unclaimed is good service. Obviously this means that an intimation of the packet was left with the Defendant at Navi Mumbai address and the Defendant was required to claim that packet. This is settled by a long line of authority on an interpretation of Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The Defendant has been properly served in view of the substituted service effected in Gurgaon; and in any event the presumption against the Defendant regarding service being effected in Navi Mumbai must also be drawn since the packet was properly despatched as required through the Sheriff s office and has been returned unclaimed . List the Suit for ex parte decree on 9th December 2016.

Summary

Issues:
1. Substituted service at multiple addresses for the Defendant.
2. Interpretation of return of packet with "unclaimed" endorsement as good service.
3. Effect of unclaimed service on limitation for filing petitions.
4. Proper service for ex parte decree.

Analysis:
1. The Plaintiff provided two addresses for the Defendant, one in Gurgaon and the other in Navi Mumbai. Substituted service was granted for Gurgaon through newspaper publication. A second attempt at service in Navi Mumbai was returned unclaimed. The court noted that serving at multiple addresses was unnecessary as service at any one address suffices.

2. The return of the packet with an "unclaimed" endorsement is considered good service. This presumption is supported by legal authorities interpreting relevant sections of the General Clauses Act and the Evidence Act. The judgment in Re: Ispat Industries Ltd. further emphasized that a notice returned as unclaimed but dispatched correctly is deemed served.

3. Unclaimed service is deemed a refusal to accept delivery, triggering the commencement of the limitation period for filing petitions. Failure to claim a delivered award, despite notification, does not delay the limitation period. The judgment cited principles from the Supreme Court and the Calcutta High Court to support this interpretation.

4. Proper service was established through substituted service in Gurgaon, and the presumption of service in Navi Mumbai was also upheld due to the correct dispatch through the Sheriff's office. The court scheduled the Suit for an ex parte decree based on the service already effected.

This comprehensive analysis of the judgment highlights the key issues addressed by the court, providing a detailed understanding of the legal reasoning and interpretations applied in the case.