M/s. Polytronic Corporation vs M/s Tukaram S. Loliencar

N. A. Britto, J.—This is Defendants'' appeal and is directed against Order dated 7-10-2008 of the learned Civil Judge, Senior Division, Margao, by which the learned Civil Judge has refused to set aside the ex-parte decree dated 12-3-2001 passed against the said Defendants. It was the case of the Defendants before the trial Court that they did not know about the ex-parte decree dated 12-3-2001 at all until 23-6-2006 when they received a notice dated 19-6-2006 addressed by Advocate Prabhu Dessai and thereupon Defendant No.1(a) came down to Goa on 26-6-2006 and applied for a certified copy and thereafter authorized his nephew Prasad Lolayekar to collect the certified copy which was collected by Defendant No.1(a)''s nephew on 7-7-2006 when they came to know that the ex-parte decree was passed against them and in favour of the Plaintiffs. The case of the defendants was that the summons sent to them was never served on the defendants and therefore there was no question of refusing the summons sent to them. The Defendants had not changed their address. The learned trial Court upon perusal of records of S.C.S. 156/99 noted that the summons sent to the Defendants by registered post A.D. was returned with endorsement "refused" and further noted that there was no dispute that the Defendants had not changed their address. The learned trial Court also noted that the Defendants'' nephew had not filed any affidavit to show that he had collected the certified copy nor the Defendants had placed on record any material to show that the summons were not served upon them and placing reliance on Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, the learned trial Court held that the Defendants had failed to discharge the burden which was on them to rebut the service of notice and consequently the service was complete. The learned trial Court also noted that a mere denial made by a party, in the circumstances of the case, would not be sufficient to rebut the presumption relating to the service of the registered cover.

Shri P. A. Kamat, learned Counsel appearing on behalf of the Appellants/Defendants submits that the Court had not realized that the Defendants were served on 4-7-2000 when the registered postal article was returned with endorsement "refused" and had further directed the Plaintiffs to take steps. Learned Counsel further submits that the defendants were not served by ordinary mode and therefore the service by registered post itself could not be accepted. Learned Counsel also submits that the Defendant No.1(a) had denied that he had refused service of notice by registered post and his statement ought to have been accepted and in this regard has placed reliance on the decision of this Court reported in Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani(AIR 1968 Bom 387). Reliance has also been placed on certain observations of this Court in the case of Shri Shantaram Fatu and another v. Smt. Harsha Umesh Sardessai and another(1998(2) Goa L.T. 259) wherein this Court stated thus:-

It is thus clear that in terms of the said Rule it is absolutely necessary for the plaintiff to take necessary steps to serve the defendant by registered post when he cannot be served through a bailiff of the Court and in addition he has to see that the copy of the summons is affixed on the outer door of the residential premises of the defendant when a person to whom the summons is addressed is not found at the premises of the registered address. The Trial Court on going through the records has arrived at the finding, as already noted above, that the petitioners herein had neither taken steps for affixation of summons on the residential premises of the respondents nor for service of summons on the respondents by registered post. Indeed the fact that there was no attempt made by the petitioners either to serve the summons by registered post or to take steps for affixation of copy of the summons on the outer door of the residential premises of the respondents is not disputed. In this set of facts I do not find any case made out for interference in the impugned Order wherein the Trial Court in exercise of its discretion, which has been judiciously exercised, has held that the summons in the main suit was not duly served on the respondents.

On the other hand, Shri Sudesh Usgaonkar, learned Counsel on behalf of the Respondents/Plaintiffs submits that the addresses given by the Defendants in the application for setting aside the ex-parte decree remains the same where the Defendants were sought to be served with notice by registered post. Learned Counsel further submits that the Court has considered that the Defendants had refused service and passed the order and therefore there was no sufficient cause made out for setting aside the ex-parte order passed against the Defendants.

The records and proceedings were called for and I have perused the same. It can be seen from the said records that after notice was sent to the Defendants by ordinary mode and it was not served, on 24-5-2000 simultaneous service was ordered by the learned trial Court in terms of Order V Rule 21A, C.P.C. On 4-7-2000 the summons issued to the Defendants were returned with endorsement "refused". Here, it may be noted that summons were sent to the Firm Defendant No.1 through Defendant No.1(a) as well as Defendant No.1(b) separately i.e. the partners of the said Firm and both the postal articles were returned in that manner. True, on 4-10-2000 the learned trial Court noted that the summons by ordinary mode were returned unserved and directed the Plaintiffs to take steps and this happened again on 20-11-2000 but on 10-1-2001 the Court directed that the suit ought to proceed ex-parte against the Defendants and presumably this was done after it was brought to the notice of the Court that the Defendants had earlier refused to accept notice by registered post when the postal article was returned on 4-7-2000. I do not find anything contrary to Order 9 Rule 6(1)(a) C.P.C. when the Court took a conscious decision on 10-1-2001 that the Defendants were duly served earlier and for that reason had directed the suit to proceed ex-parte against the Defendants.

The decision cited on behalf of the Defendants and reported in (1988(1) GLT 259) is inapplicable to the case at hand. This is a case where simultaneous service was ordered on 24-5-2000 and the Defendants were duly served by registered post. Sub-Rule(2) of Rule 19-A, Order 5, C.P.C., reads as follows: When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons.

The very purpose of sending summons simultaneously is to ensure that the party to whom they are sent, is served at least by one mode. Learned Counsel on behalf of the Defendants has not been able to point out any provision of C.P.C., and for that matter any decision of this Court that the Plaintiffs were also entitled to be served by ordinary mode when simultaneous service was ordered to be made to the Defendants. In Samir Snigdha Chandra Vs. Pranaya Bhusan Chandra and Others, it has been held that declaration under Order V, Rule 19-A(2), C.P.C. is sufficient for the Court to proceed ex-parte notwithstanding the service returned by ordinary mode being not traceable. The rules embodied in sub-rule(2) and the proviso is a logical extension of Section 27, General Clauses Act which runs as under: Where any General Act or Regulation made after the commencement of the General Clauses Act authorizes or requires any document to be served by post, then unless different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Under this section, therefore, as soon as it is proved that the letter containing the summons was properly addressed, prepaid and posted by registered post the service shall be presumed to have been effected.

The decision of the Apex Court on which reliance was placed by the learned trial Court in the case of Gujarat Electricity Board and another v. Atmaram Sungomal Poshani(supra) is quite clear. That was a case where an affidavit in rejoinder was filed wherein it was denied that the registered letter was not tendered to the Respondent and the postal endorsement was wrong and incorrect. The Hon''ble Supreme Court observed that there is a presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. This Court has earlier held that a bare denial or a bare assertion by the party concerned without anything more or any further evidence that the party concerned had not received the registered article is not sufficient to rebut the presumption. In other words, a self serving statement on oath that the registered article was not received or a bare denial or assertion that it was not received by a person who stands to profit by his denial or assertion would not be sufficient to warrant the rebuttal of the presumption. As noted by the learned trial Court there was no dispute as regards the address. This is a case where both the defendants had refused to accept the summons and only one had applied for setting aside the Decree. The contention that the ex-parte decree was passed against them without proper service of notice has rightly been rejected by the learned trial Court. There is no merit in this appeal and consequently the same is hereby dismissed.