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HIGH COURT OF CALCUTTA
Bachawat
GANESHMAL BHAWARLAL - Appellant
Versus
KESORAM COTTON MILLS LTD. - Respondent
O. O. C. J. Suit 268 Of 1950
Decided On : JANUARY 2, 1951
ARBITRATION - Setting aside ex parte decree - Service of notice - Affixation of copy of notice - Mandatory provision - Irregular service - Waiver of service - Limitation - Inherent power of Court to set aside judgment and order passed ex parte without notice to the party.
Fact of the Case:
An ex parte decree was passed on the basis of an arbitration award. The petitioner firm applied to set aside the decree on the ground that it was not served with the notice of the filing of the award. The process server had tendered copies of the notice to the three alleged partners of the petitioner firm, but they refused to sign the acknowledgment of service. The notices were returned to the Court along with the affidavits of the process server and the person accompanying him. The attorneys for the respondents sent three letters by registered post to the alleged partners, but only one was received by Bhairudan. The petitioner firm came to know of the passing of the decree for the first time in September 1950 during the Puja holidays and moved the application to set aside the decree on the day the Court reopened after the holidays.
Finding of the Court:
1. The process server went to Raipur and tendered three copies of the notice to each of the three alleged partners of the petitioner firm. 2. Hastimal and Bhairudan did not file any affidavits contradicting the process server, and it was held that copies of the notices were tendered to and accepted by them. 3. The attorneys for the respondents were acting bona fide and openly sent letters to each of the alleged partners informing them of the service. 4. There was no affixation of copies of the notice on the outer door of the premises where the alleged partners were residing and carrying on business. 5. Service of the notice is mandatory and must be effected in the manner prescribed by law. 6. Non-affixation of a copy of the notice is not merely an irregularity but renders the service invalid. 7. The retention of the copy of the notice by the defendant does not constitute service of the summons where there is none. 8. The decree was passed without serving the notice under Section 14 of the Arbitration Act duly or in accordance with the Code and the Rules. 9. The decree was also passed without complying with the mandatory provisions of Section 17 of the Arbitration Act, as the time for applying to set aside the award had not expired. 10. The Court has the inherent power and duty to correct injustice and to set aside a judgment and order passed ex parte without notice to the party.
Issues: 1. Whether the service of notice was duly effected in accordance with the law? 2. Whether the non-affixation of a copy of the notice on the outer door of the premises rendered the service invalid? 3. Whether the retention of the copy of the notice by the defendant constituted service of the summons? 4. Whether the decree was passed without complying with the mandatory provisions of Section 17 of the Arbitration Act? 5. Whether the Court has the inherent power to set aside a judgment and order passed ex parte without notice to the party?
Ratio Decidendi: 1. Service of notice is mandatory and must be effected in the manner prescribed by law. 2. Non-affixation of a copy of the notice is not merely an irregularity but renders the service invalid. 3. The retention of the copy of the notice by the defendant does not constitute service of the summons where there is none. 4. The decree was passed without serving the notice under Section 14 of the Arbitration Act duly or in accordance with the Code and the Rules. 5. The decree was also passed without complying with the mandatory provisions of Section 17 of the Arbitration Act, as the time for applying to set aside the award had not expired. 6. The Court has the inherent power and duty to correct injustice and to set aside a judgment and order passed ex parte without notice to the party.
Final Decision: The ex parte decree passed on the basis of the arbitration award was set aside. The Court ordered that fresh notices be issued to the petitioner firm and its partners by registered post.
( 1 ) THIS is an application for setting aside an ex parte decree passed on the 28th February, 1950 by this Court. The facts are fairly simple but certain important questions of law arise in this case.
( 2 ) THERE were disputes between the petitioner firm Ganeshmal Bhawarmal and Keshoram Cotton Mills Ltd. The disputes were eventually referred to the arbitration of the Indian Chamber of Commerce. The arbitration tribunal made an award in favour of the respondent on the 5th July 1950. The award was filed in Court and on the 18th January, 1950 notice of such filing was issued by the Registrar. A clerk in the employ of the Attorneys of the respondents went to Raipur for serving Ganeshmal Bhairudan and Hastimal all alleged to be partners of the petitioner firm. It appears from the affidavit of the process server that on the 24th January 1950 three several copies of the notices were tendered to and accepted by all the three persons who were then at Raipur but all of them refused to sign acknowledgment of the receipt of the notice. The original notice was returned to this Court along with the affidavits of the processserver and of the person accompanying him. On the 27th January, 1950 Messrs. P. D. Himatsingka and Co. , the attorneys for the respondents sent three letters by registered post to Ganeshmal, Hastimal and Bhairudan recording the service of the notice. The registered covers sent to Ganeshmal and Hastimal came back with the endorsement 'left' and 'refused' respectively. The letter sent to Bhairudan was duly received by him. On the 17th February, 1950 Messrs. P. D. Himatsingka and Co. , received a letter from one of these three persons. In that letter the writer says that he was not in Raipur and was not served with any notice and that he was not a partner of Ganeshmal Bhawarmal. In the affidavit on behalf of the respondent it is stated that the writer of this letter is Hastimal. But this appears to be a mistake and it seems now to be the common case that the writer is Bhairudan. There was no further correspondence. On the 28th February 1950 this Court pronounced a judgment according to the award and a decree followed. The decree was eventually transmitted outside Calcutta for execution. The petitioner firm alleges that it came to know of the passing of the decree for the first time in September 1950 during the Puja holidays and the present application was moved on the day the Court reopened after the holidays. The petition is signed by Ganeshmal and supported by only his affidavit. The ground taken is that the petitioner was not served with the notice. On the 22nd November 1950, I gave directions for affidavits which were complied with and the matter came up for hearing on the 13th December, 1950. On my pointing out to the counsel for the respondent that there were no affidavits from Hastimal and Bhairudan, the counsel asked for adjournment. After the matter was part heard, the matter was adjourned until 20th December, 1950 in order to allow further affidavits to be filed. On the 20th December, 1950 further adjournment was asked but was refused by me as it appeared to me that the petitioner was trying to delay the matter and the application was then heard on the merits.
( 3 ) I have no hesitation in accepting the affidavit of the process-server in its entirety and in holding that the process-server went to Raipur and that three several copies of the notice were tendered by him to and accepted by each of the three alleged partners of the petitioner firm. Hastimal and Bhairudan have not filed any affidavits contradicting the process-server and I must hold that copies of the notices were tendered to and accepted by them. The attorneys for the respondents were acting bona fide and openly sent letters to each of the alleged partners informing them of the service and there is no attempt to suppress service of the notice. The only person who has denied the service on affidavit is Ganeshmal. He simply denies that he
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