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TMI Blog1991 (3) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 oppositeparty, 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. On behalf of the respondent, it has been submitted that the learned appellate judge was perfectly justified in reversing the finding of the learned trial judge as in effect there was no proper service of summons upon the opposite party which is a private limited company r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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