Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (OS) No. 438/2007
rd
Judgment reserved on: 23 December, 2010
th
% Judgment delivered on : 17 January, 2011
V.K. CONSTRUCTIONS WORKS LTD & ORS. …APPELLANTS
Through : Mr. Janendra Lal and
Ms. Yasmin Tarapore, Advocates for
appellant Nos. 3 to 5 & LR Nos. 4(iv) (v) (vi)
of appellant No. 2
Versus
M/S ABDUL KHALIQUE & ORS. ...RESPONDENTS
Through : Mr. Niloy Dasgupta, Advocate
for R-1.
R - 2 to 4 are formal parties.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON’BLE MR. JUSTICE M.L.MEHTA
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
M.L. MEHTA, J.
th
1. This is an appeal against the order dated 6 July, 2007 passed
by the learned Single Judge in I.A. No. 317/2005 filed by
appellant No.3, I.A. No. 1091/2005 filed by appellants No. 1, 2
FAO (OS) No. 438/2007
Page 1 of 15
& 4 and I.A. No. 1271 filed by appellant No. 5, under Order 9
Rule 13 CPC in original suit bearing CS(OS) No. 2433 of 1996.
Vide impugned order, learned Single Judge dismissed the
applications, filed by the appellants for setting aside the ex-
parte decree passed in favour of respondent No. 1 (plaintiff)
and against appellants and respondents No. 2 to 4.
2. The brief chronology of facts and events resulting to the filing
of the present appeal are that respondent No. 1 filed the
aforesaid civil suit for recovery of Rs.14,89,325/- against
defendants No. 1 to 9. Defendants No. 1 to 3 are the
appellants No. 1 to 3, defendant No. 6 is appellant No. 4 and
defendant No. 7 is appellant No. 5. The other defendants viz
defendants No. 4, 5 and 8 are arrayed as respondents No. 2, 3
and 4 in the present appeal. Defendant No. 1 (appellant No. 1
herein) is a Public Limited Company, defendant No. 2
(appellant No. 2 herein) is the Chairman and defendants No.
3, 6 and 7 (appellants No. 3 to 5) are directors of the
FAO (OS) No. 438/2007
Page 2 of 15
appellant No. 1 company. In the plaint, the residential
addresses of defendants No. 7 and 9 were furnished and they
were duly served at those addresses. The Chandigarh office
address was also stated to be the residential address of the
Chairman and some other Directors. Defendants No. 1, 2, 7
and 9 were served, but other defendants remained unserved
despite issuance of summons at all the given addresses,
including the two project sites at Bombay. At the instance of
the plaintiff, the name of defendant No. 9 was struck off from
the array of the parties. Defendants No. 1, 2 and 7 did not
appear despite service and as no written statement was filed
on their behalf, their right to file the same was closed.
3. Since defendants No. 3 to 6 and 8 remained repeatedly
th
unserved, the Joint Registrar, vide order dated 24 March,
1999 directed them to be served through publication in daily
newspaper under Order 5 Rule 20 CPC. All the defendants
were served by publication in Indian Express Delhi and
FAO (OS) No. 438/2007
Page 3 of 15
th
Chandigarh edition dated 28 July, 1999, and since they did
not appear, they were proceeded ex-parte. Plaintiff
(respondent No. 1) filed evidence by way of affidavit and,
thereafter, an ex-parte decree was passed against the
defendants.
4. Defendants No. 1, 2, 3, 6 and 7 are the appellants who filed
applications under Order 9 Rule 13 CPC for setting aside the
ex-parte decree. The same came to be dismissed by learned
th
Single Judge of this Court vide impugned order dated 6 July,
2007. The present appeal has been preferred against the said
order of the learned Single Judge.
5. Learned counsel appearing for the appellants has assailed the
order of learned Single Judge on the ground that the
appellants, as also respondents No. 2 to 4, were not served at
their residential addresses and no effort was made by the
plaintiff to get them served at their residential addresses. He
submitted that plaintiff did not make any inquiry to ascertain
FAO (OS) No. 438/2007
Page 4 of 15
the correct addresses of the appellants and that Delhi address
was a commercial address of the appellants and further that
since it was no longer being used by them, the question of
serving them at the said address did not arise and
consequently, the publication at the said address was bad in
law.
6. He further submitted that a copy of newspaper was not sent
to the appellants as per Rule 8 Chapter 7-B Volume IV of the
High Court Rules. Learned counsel relied upon M/s Durant
Refrigeration Pvt. Ltd v. Northern Radio & Refrigeration Co.
(P) Ltd 48 (1992) DLT page 680 and Shri Lachhman Dass v.
Messers Veer Finance Co. and Others 5 (1969) DLT 306.
7. Based on these contentions, learned counsel submitted that
the applications under Order 9 Rule 13 CPC of the appellants
ought to have been allowed and they be provided
opportunity to contest the suit of the plaintiff on merits.
FAO (OS) No. 438/2007
Page 5 of 15
8. From the submissions of learned counsel for the appellants it
is noticed at the cost of repetition that the main contention
centered around the fact that (i) the appellants were no
longer doing the commercial activities at Delhi address which
has since been closed and the plaintiff made no efforts to get
them served at their residential addresses after making due
inquiries in this regard. (ii) that the question of serving the
appellants at Delhi address did not arise since they had closed
their commercial activities and were not residing at this
address. (iii) that no copy of the newspaper was addressed to
them in terms of Rule 8 Chapter 7 B Vol IV of the High Court
Rules.
9. Before dealing with the contentions of learned counsel for
the appellants, we may record some more relevant facts
borne out from the record. Defendant No. 9 was served and
had also entered appearance. Written statement was also
filed by defendant No. 9, though he was subsequently deleted
FAO (OS) No. 438/2007
Page 6 of 15
from the array of the parties. Defendant No. 7, who is
appellant No. 5 herein, was also served, but chose not to
appear and contest. It was specifically recorded by the Joint
Registrar that defendants No. 1, 2 and 7 (appellants No. 1, 2
th
and 5) were duly served. Vide order dated 18 July, 2008,
this Court declined to entertain the appeal of defendant No.
5. The appellant No. 1 (defendant No. 1) also did not press
the present appeal. Appellant No. 2 (defendant No. 2) was
the Chairman of the appellant Company. He was served
through one Mr. Vijender Kumar. Defendants No. 2 and 7
(appellants No. 2 and 5, herein) raised a plea before learned
Single Judge that though they have been served, in case the
application of defendants No. 3 to 6 was to be allowed, then
decree may also be set aside qua them. Appellant No. 2 has
since expired and his LRs were allowed to be impleaded. LR
No. 2(vi) Vinod Kumar Garg is also appellant No. 3 in the
present appeal. LRs No. 2(i) and 2(iii) were stated to have no
interest in the proceedings and were subsequently ordered to
FAO (OS) No. 438/2007
Page 7 of 15
th
be deleted vide order dated 4 May, 2010. LR No. 2 (ii) (R.K.
th
Garg) was not served. As per order dated 4 October, 2010 it
was assumed that he has no interest in pursuing the appeal.
LR No. 2(v) is already respondent No.2. He was also
defendant No. 4 in the suit. Practically, it was LR No. 2, Mrs.
Vijay Gupta, who was the only one new in the array of parties.
10. In this background we note that defendant No. 9 and
defendant No. 7 (appellant No. 5, herein) who are the
Directors of the appellant’s Company were admittedly served.
The appeal of appellant No. 5 (defendant No. 7 herein) was
not admitted. The appellant No. 2 (defendant No. 2, herein)
was served through Mr. Vijender Kumar. Notice to him was
issued at both, Delhi as well as Chandigarh address. There is
no reason to disbelieve service of this appellant through
Mr. Vijender Kumar. The appellant No. 1 which is the
Company was also reported to have been served at the given
addresses. The plea that the service was not effected at Delhi
FAO (OS) No. 438/2007
Page 8 of 15
address since it was closed, is untenable. It was undisputed
that Delhi was the principal office whereas Chandigarh
address was the registered office of the Company. Repeated
summons were issued at both these given addresses. It is the
plea of the appellants that the Delhi office was closed, but it is
no where their plea that Chandigarh office was also closed. It
is also not their case that the publication affected at
Chandigarh was bad in law.
11. In the grounds of appeal as set out by the appellants, they
have only referred to the closure of their commercial
activities from Delhi address. It has not been denied by them
that Chandigarh address was the registered office of the
Company as also their residential address.
th
12. Vide order dated 5 November, 2008, the appellants were
directed to file their various addresses as also of respondents
No. 2 to 4 on affidavit along with dates. The said affidavit was
filed by appellant No. 3 after few adjournments. It was noted
FAO (OS) No. 438/2007
Page 9 of 15
th
by the Court on 13 May, 2009 that the affidavit of this
appellant was wonderfully vague and devoid of all material
facts, especially with regard to the addresses at Chandigarh
and Delhi in the relevant period of 1996-1999. As directed
another affidavit was filed by this appellant. However, no
affidavit was filed by appellant No. 4. In the mean, appellant
th
No. 2 passed away on 10 June, 2009. As is evident from
both the affidavits of appellant No. 3, he admits his
residential address of Chandigarh, which is the same as
mentioned in the plaint. It was also the registered office of
the appellant company. In his affidavit he stated his
permanent residential address and also of his wife (appellant
No. 4) and parents as the same Chandigarh address. Though
he stated that he sometime lived in Hyderabad and in New
Delhi during this period but it was an admitted fact that
Chandigarh continued to be their permanent residential
address and they resided in the said premises.
FAO (OS) No. 438/2007
Page 10 of 15
13. From all that has been stated above, it comes out to be an
established fact on record that appellants were issued
summons at the given addresses which were their registered
office at Chandigarh and principal office at Delhi. The
Chandigarh address was also the residential address of
appellants No. 1 to 4. The summons issued by Registered
post at the given addresses are presumed to have been
served upon them. In the given circumstances, when these
appellants were residing at the Chandigarh address, which
was also the registered office, though it was closed later, it
was very convenient for them to inform Process Server about
the registered office having been closed. In any case, there
was no requirement of service of summons to the directors of
the company at their residential addresses. As per Order 29
Rule 2 CPC the summons on a corporation may be served by
leaving or sending it by post, addressed to the corporation at
the registered office or if there is no registered office then on
the place where the corporation carries on the business. To
FAO (OS) No. 438/2007
Page 11 of 15
the same extent is the provision under Section 51 of the
Companies Act regarding service on a company. Order 29
Rule 2 CPC and Section 51 of the Companies Act are
reproduced as under :-
Order 29 Rule 2:-
“2. Service on corporation.- Subject to any statutory
provision regulating service of process, where the suit is
against a 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.”
Section 51 of the Companies Act, 1956 :-
“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:
[Provided that where the securities are held in a
depository. The records of the beneficial ownership
may be served by such depository on the company by
means of electronic mode or by delivery of floppies or
discs.]”
FAO (OS) No. 438/2007
Page 12 of 15
14. Having seen all that, it appears that when service was duly
effected upon the appellants, there was no need of issue of
service by way of publication. However, the learned Joint
Registrar cautiously proceeded to issue service by publication
in Indian Express. He had also taken the precaution of getting
publication effected at both the registered as well as the
principal office of the Company at Chandigarh and Delhi.
15. With regard to the submission of learned counsel for the
appellants, that a copy of publication was not addressed to
the appellants, it may be stated that as noted above there
was no need to issue publication and in any case there was no
such order passed by the Joint Registrar directing the
Manager of the newspaper for sending a copy of the
publication. In the case of M/s Durant Refrigeration Pvt. Ltd
v. Northern Radio & Refrigeration Co. (P) Ltd (supra) relied
upon by learned counsel for the appellants the Registrar had
in the given circumstances, directed the Manager of
FAO (OS) No. 438/2007
Page 13 of 15
newspaper to send one copy of the publication to the
defendant under postal certificate. Since that was not
mandatory, the Joint Registrar in the present case did not
deem it necessary to give such a direction to the Manager of
the newspaper keeping in view the background of the facts
that some of the Directors of the company had already been
served.
16. In the case of Shri Lachhman Dass v. Messers Veer Finance
Co. and others 5(1969) DLT 306 publication was effected in
newspaper which was held not to be proper since the party
was residing at Mainpuri where the said newspaper was not
in circulation. Under the circumstances, the service was held
to be insufficient in the absence of sending of copy of
publication to the concerned party. That is not the situation
in the present case.
17. In the end it may also be noted that the appellant company
mainly comprised of family members. They were neither the
FAO (OS) No. 438/2007
Page 14 of 15
rustic villagers nor the illiterates to be unaware of the Court
proceedings. They in their own way have been able to prolong
the matter for about fourteen years.
18. For all the above reasons, we do not find any merit in the
present appeal and the same is hereby dismissed with costs
of Rs.10,000/-.
M.L.MEHTA
(JUDGE)
SANJAY KISHAN KAUL
(JUDGE)
JANUARY 17, 2011
Vld /AK
FAO (OS) No. 438/2007
Page 15 of 15
+ FAO (OS) No. 438/2007
rd
Judgment reserved on: 23 December, 2010
th
% Judgment delivered on : 17 January, 2011
V.K. CONSTRUCTIONS WORKS LTD & ORS. …APPELLANTS
Through : Mr. Janendra Lal and
Ms. Yasmin Tarapore, Advocates for
appellant Nos. 3 to 5 & LR Nos. 4(iv) (v) (vi)
of appellant No. 2
Versus
M/S ABDUL KHALIQUE & ORS. ...RESPONDENTS
Through : Mr. Niloy Dasgupta, Advocate
for R-1.
R - 2 to 4 are formal parties.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON’BLE MR. JUSTICE M.L.MEHTA
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
M.L. MEHTA, J.
th
1. This is an appeal against the order dated 6 July, 2007 passed
by the learned Single Judge in I.A. No. 317/2005 filed by
appellant No.3, I.A. No. 1091/2005 filed by appellants No. 1, 2
FAO (OS) No. 438/2007
Page 1 of 15
& 4 and I.A. No. 1271 filed by appellant No. 5, under Order 9
Rule 13 CPC in original suit bearing CS(OS) No. 2433 of 1996.
Vide impugned order, learned Single Judge dismissed the
applications, filed by the appellants for setting aside the ex-
parte decree passed in favour of respondent No. 1 (plaintiff)
and against appellants and respondents No. 2 to 4.
2. The brief chronology of facts and events resulting to the filing
of the present appeal are that respondent No. 1 filed the
aforesaid civil suit for recovery of Rs.14,89,325/- against
defendants No. 1 to 9. Defendants No. 1 to 3 are the
appellants No. 1 to 3, defendant No. 6 is appellant No. 4 and
defendant No. 7 is appellant No. 5. The other defendants viz
defendants No. 4, 5 and 8 are arrayed as respondents No. 2, 3
and 4 in the present appeal. Defendant No. 1 (appellant No. 1
herein) is a Public Limited Company, defendant No. 2
(appellant No. 2 herein) is the Chairman and defendants No.
3, 6 and 7 (appellants No. 3 to 5) are directors of the
FAO (OS) No. 438/2007
Page 2 of 15
appellant No. 1 company. In the plaint, the residential
addresses of defendants No. 7 and 9 were furnished and they
were duly served at those addresses. The Chandigarh office
address was also stated to be the residential address of the
Chairman and some other Directors. Defendants No. 1, 2, 7
and 9 were served, but other defendants remained unserved
despite issuance of summons at all the given addresses,
including the two project sites at Bombay. At the instance of
the plaintiff, the name of defendant No. 9 was struck off from
the array of the parties. Defendants No. 1, 2 and 7 did not
appear despite service and as no written statement was filed
on their behalf, their right to file the same was closed.
3. Since defendants No. 3 to 6 and 8 remained repeatedly
th
unserved, the Joint Registrar, vide order dated 24 March,
1999 directed them to be served through publication in daily
newspaper under Order 5 Rule 20 CPC. All the defendants
were served by publication in Indian Express Delhi and
FAO (OS) No. 438/2007
Page 3 of 15
th
Chandigarh edition dated 28 July, 1999, and since they did
not appear, they were proceeded ex-parte. Plaintiff
(respondent No. 1) filed evidence by way of affidavit and,
thereafter, an ex-parte decree was passed against the
defendants.
4. Defendants No. 1, 2, 3, 6 and 7 are the appellants who filed
applications under Order 9 Rule 13 CPC for setting aside the
ex-parte decree. The same came to be dismissed by learned
th
Single Judge of this Court vide impugned order dated 6 July,
2007. The present appeal has been preferred against the said
order of the learned Single Judge.
5. Learned counsel appearing for the appellants has assailed the
order of learned Single Judge on the ground that the
appellants, as also respondents No. 2 to 4, were not served at
their residential addresses and no effort was made by the
plaintiff to get them served at their residential addresses. He
submitted that plaintiff did not make any inquiry to ascertain
FAO (OS) No. 438/2007
Page 4 of 15
the correct addresses of the appellants and that Delhi address
was a commercial address of the appellants and further that
since it was no longer being used by them, the question of
serving them at the said address did not arise and
consequently, the publication at the said address was bad in
law.
6. He further submitted that a copy of newspaper was not sent
to the appellants as per Rule 8 Chapter 7-B Volume IV of the
High Court Rules. Learned counsel relied upon M/s Durant
Refrigeration Pvt. Ltd v. Northern Radio & Refrigeration Co.
(P) Ltd 48 (1992) DLT page 680 and Shri Lachhman Dass v.
Messers Veer Finance Co. and Others 5 (1969) DLT 306.
7. Based on these contentions, learned counsel submitted that
the applications under Order 9 Rule 13 CPC of the appellants
ought to have been allowed and they be provided
opportunity to contest the suit of the plaintiff on merits.
FAO (OS) No. 438/2007
Page 5 of 15
8. From the submissions of learned counsel for the appellants it
is noticed at the cost of repetition that the main contention
centered around the fact that (i) the appellants were no
longer doing the commercial activities at Delhi address which
has since been closed and the plaintiff made no efforts to get
them served at their residential addresses after making due
inquiries in this regard. (ii) that the question of serving the
appellants at Delhi address did not arise since they had closed
their commercial activities and were not residing at this
address. (iii) that no copy of the newspaper was addressed to
them in terms of Rule 8 Chapter 7 B Vol IV of the High Court
Rules.
9. Before dealing with the contentions of learned counsel for
the appellants, we may record some more relevant facts
borne out from the record. Defendant No. 9 was served and
had also entered appearance. Written statement was also
filed by defendant No. 9, though he was subsequently deleted
FAO (OS) No. 438/2007
Page 6 of 15
from the array of the parties. Defendant No. 7, who is
appellant No. 5 herein, was also served, but chose not to
appear and contest. It was specifically recorded by the Joint
Registrar that defendants No. 1, 2 and 7 (appellants No. 1, 2
th
and 5) were duly served. Vide order dated 18 July, 2008,
this Court declined to entertain the appeal of defendant No.
5. The appellant No. 1 (defendant No. 1) also did not press
the present appeal. Appellant No. 2 (defendant No. 2) was
the Chairman of the appellant Company. He was served
through one Mr. Vijender Kumar. Defendants No. 2 and 7
(appellants No. 2 and 5, herein) raised a plea before learned
Single Judge that though they have been served, in case the
application of defendants No. 3 to 6 was to be allowed, then
decree may also be set aside qua them. Appellant No. 2 has
since expired and his LRs were allowed to be impleaded. LR
No. 2(vi) Vinod Kumar Garg is also appellant No. 3 in the
present appeal. LRs No. 2(i) and 2(iii) were stated to have no
interest in the proceedings and were subsequently ordered to
FAO (OS) No. 438/2007
Page 7 of 15
th
be deleted vide order dated 4 May, 2010. LR No. 2 (ii) (R.K.
th
Garg) was not served. As per order dated 4 October, 2010 it
was assumed that he has no interest in pursuing the appeal.
LR No. 2(v) is already respondent No.2. He was also
defendant No. 4 in the suit. Practically, it was LR No. 2, Mrs.
Vijay Gupta, who was the only one new in the array of parties.
10. In this background we note that defendant No. 9 and
defendant No. 7 (appellant No. 5, herein) who are the
Directors of the appellant’s Company were admittedly served.
The appeal of appellant No. 5 (defendant No. 7 herein) was
not admitted. The appellant No. 2 (defendant No. 2, herein)
was served through Mr. Vijender Kumar. Notice to him was
issued at both, Delhi as well as Chandigarh address. There is
no reason to disbelieve service of this appellant through
Mr. Vijender Kumar. The appellant No. 1 which is the
Company was also reported to have been served at the given
addresses. The plea that the service was not effected at Delhi
FAO (OS) No. 438/2007
Page 8 of 15
address since it was closed, is untenable. It was undisputed
that Delhi was the principal office whereas Chandigarh
address was the registered office of the Company. Repeated
summons were issued at both these given addresses. It is the
plea of the appellants that the Delhi office was closed, but it is
no where their plea that Chandigarh office was also closed. It
is also not their case that the publication affected at
Chandigarh was bad in law.
11. In the grounds of appeal as set out by the appellants, they
have only referred to the closure of their commercial
activities from Delhi address. It has not been denied by them
that Chandigarh address was the registered office of the
Company as also their residential address.
th
12. Vide order dated 5 November, 2008, the appellants were
directed to file their various addresses as also of respondents
No. 2 to 4 on affidavit along with dates. The said affidavit was
filed by appellant No. 3 after few adjournments. It was noted
FAO (OS) No. 438/2007
Page 9 of 15
th
by the Court on 13 May, 2009 that the affidavit of this
appellant was wonderfully vague and devoid of all material
facts, especially with regard to the addresses at Chandigarh
and Delhi in the relevant period of 1996-1999. As directed
another affidavit was filed by this appellant. However, no
affidavit was filed by appellant No. 4. In the mean, appellant
th
No. 2 passed away on 10 June, 2009. As is evident from
both the affidavits of appellant No. 3, he admits his
residential address of Chandigarh, which is the same as
mentioned in the plaint. It was also the registered office of
the appellant company. In his affidavit he stated his
permanent residential address and also of his wife (appellant
No. 4) and parents as the same Chandigarh address. Though
he stated that he sometime lived in Hyderabad and in New
Delhi during this period but it was an admitted fact that
Chandigarh continued to be their permanent residential
address and they resided in the said premises.
FAO (OS) No. 438/2007
Page 10 of 15
13. From all that has been stated above, it comes out to be an
established fact on record that appellants were issued
summons at the given addresses which were their registered
office at Chandigarh and principal office at Delhi. The
Chandigarh address was also the residential address of
appellants No. 1 to 4. The summons issued by Registered
post at the given addresses are presumed to have been
served upon them. In the given circumstances, when these
appellants were residing at the Chandigarh address, which
was also the registered office, though it was closed later, it
was very convenient for them to inform Process Server about
the registered office having been closed. In any case, there
was no requirement of service of summons to the directors of
the company at their residential addresses. As per Order 29
Rule 2 CPC the summons on a corporation may be served by
leaving or sending it by post, addressed to the corporation at
the registered office or if there is no registered office then on
the place where the corporation carries on the business. To
FAO (OS) No. 438/2007
Page 11 of 15
the same extent is the provision under Section 51 of the
Companies Act regarding service on a company. Order 29
Rule 2 CPC and Section 51 of the Companies Act are
reproduced as under :-
Order 29 Rule 2:-
“2. Service on corporation.- Subject to any statutory
provision regulating service of process, where the suit is
against a 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.”
Section 51 of the Companies Act, 1956 :-
“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:
[Provided that where the securities are held in a
depository. The records of the beneficial ownership
may be served by such depository on the company by
means of electronic mode or by delivery of floppies or
discs.]”
FAO (OS) No. 438/2007
Page 12 of 15
14. Having seen all that, it appears that when service was duly
effected upon the appellants, there was no need of issue of
service by way of publication. However, the learned Joint
Registrar cautiously proceeded to issue service by publication
in Indian Express. He had also taken the precaution of getting
publication effected at both the registered as well as the
principal office of the Company at Chandigarh and Delhi.
15. With regard to the submission of learned counsel for the
appellants, that a copy of publication was not addressed to
the appellants, it may be stated that as noted above there
was no need to issue publication and in any case there was no
such order passed by the Joint Registrar directing the
Manager of the newspaper for sending a copy of the
publication. In the case of M/s Durant Refrigeration Pvt. Ltd
v. Northern Radio & Refrigeration Co. (P) Ltd (supra) relied
upon by learned counsel for the appellants the Registrar had
in the given circumstances, directed the Manager of
FAO (OS) No. 438/2007
Page 13 of 15
newspaper to send one copy of the publication to the
defendant under postal certificate. Since that was not
mandatory, the Joint Registrar in the present case did not
deem it necessary to give such a direction to the Manager of
the newspaper keeping in view the background of the facts
that some of the Directors of the company had already been
served.
16. In the case of Shri Lachhman Dass v. Messers Veer Finance
Co. and others 5(1969) DLT 306 publication was effected in
newspaper which was held not to be proper since the party
was residing at Mainpuri where the said newspaper was not
in circulation. Under the circumstances, the service was held
to be insufficient in the absence of sending of copy of
publication to the concerned party. That is not the situation
in the present case.
17. In the end it may also be noted that the appellant company
mainly comprised of family members. They were neither the
FAO (OS) No. 438/2007
Page 14 of 15
rustic villagers nor the illiterates to be unaware of the Court
proceedings. They in their own way have been able to prolong
the matter for about fourteen years.
18. For all the above reasons, we do not find any merit in the
present appeal and the same is hereby dismissed with costs
of Rs.10,000/-.
M.L.MEHTA
(JUDGE)
SANJAY KISHAN KAUL
(JUDGE)
JANUARY 17, 2011
Vld /AK
FAO (OS) No. 438/2007
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