The court emphasized the importance of proper service of notice, refrained from determining the jurisdiction of the Civil Court, and directed the Civil Judge concerned to independently dispose of the injunction matter.

JUDGMENT :

Subhendu Samanta, J.

I.A. NO. CAN -1 of 2023

1. This is an application for recalling of an order passed by this court on November 1st, 2023. This instant application was preferred by respondent No. 10 of the original CO No. 4004 of 2023.

2. The brief fact of the case is that the CO has been preferred against the order dated October 2023 passed by the Learned Additional District and Sessions Judge, Fast Track 4th Court in MISC appeal No. 133 of 2023 wherein the Learned Additional Sessions Judge, has refused to pass an interim order of injunction in favour of the petitioner. After filing of the CO, a direction was made to serve upon the Ops, accordingly service was affected.

3. After service the matter was again placed before this court along with the affidavit of service. This court on taking note of affidavit that service has effected upon the OP 10 and 11, has passed an impugned order on restraining the OP 10 to issue any sale certificate, in respect of the ground and top floor of the building situated at Kazi Najrul Islam Sarani, Calcutta 700052 , if not already issued by them.

4. Now the OP 10 appeared before this Court along with an application for recalling of impugned order dated 1st November 2023.

5. Heard the Learned Advocate for the parties at length. It appears that the grounds for recalling the order is mainly two fold-

Firstly : the impugned order was passed ex parte without serving proper and effective notice upon the respondent No. 10.

Secondly : the respondent No.10 may be allowed to be heard regarding the merits of the CO.

6. In considering the first ground it is contended by Mr. Basu, Learned Advocate for OP 10 that the notice of the CO was sent to the head office of OP No. 10 in Chennai, whereas the concern office of the respondent No. 10 with regard to the present issue is pending in Mumbai Office, the notice should have been addressed to the Mumbai Office. So, the service made by the petitioner cannot be termed as “proper service”. It is the further contention of the OP 10 that they came to know about the impugned order firstly on November 20th, 2023 when the present petitioner filed the copy of the order before the Recovery Officer, Debt recovery Tribunal Mumbai, thereafter they made an enquiry and found that said application was served in the Chennai Office instead of Mumbai Office.

7. It is the argument on behalf of the Mr. Basu that the petitioner has purposefully served a notice upon the Chennai Office instead of knowing the fact that the concern office regarding the said proceeding before the Debt Recovery Tribunal is concern to the Mumbai Office. It is further argued that the plaintiff only intend to get an order of injunction OP Financial Institution, has mislead the court by serving an improper notice upon the office at Chennai.

8. Learned Advocate Mr. Thaker, appearing on behalf of the petitioner submits that the present OP 10 has admittedly has his registered office head office at Chennai. The petitioner served the application upon the office of Respondent No. 10 at Chennai Office.

9. He further argued that, according to the law laid down for the provisions of Order 29 Rule 2 CPC summons has to be served by post addressed to the corporation to its Registrar office. It is further argued by Mr. Thaker that the order of the recalling has been sought was passed on 1st November 2023; the instant application for recalling was filed on 20th December 2023 i.e. after the period of 30 days; the application for recalling is appeared to be barred by limitation but the applicant has not filed a separate application for contention of delay. Thus the application is not maintainable.

10. Refuting the contention of the petitioners, Mr. Basu argued that the provision of Order XXIX CPC is applicable in respect of suits only; it is an application in respect of a proceeding under Article 227 of the Constitution of India, where the rules of CPC is not applicable.

11. Heard the Learned Advocate perused the pl