The presence of witnesses at the time of affixation of summons is not mandatory for the validity of service.

( 1 ) THIS Division Bench has been constituted by Hon ble the Chief Justice on a reference made by J. K. Mehra, J. sitting as a Company Judge. Vide order of reference dated 4. 1. 95 his Lordship has found himself not persuaded to subscribe to the view taken by another learned Single Judge of this Court - Usha Mehra, J. sitting as a Company Judge in the order dated 2. 9. 93 passed in CA 790 / 86, Mis. Sahara Deposits v. Smt. Majidan and Ors.

( 2 ) IN the case at hand, the proceedings have commenced on an application under Section 446 (2) of the Companies Act, 1956 filed by the Official Liquidator seeking recovery of an amount of Rs. 2029. 95 and interest. Summons on the respondent could not be served in ordinary manner and hence on an application made by the Official Liquidator service was directed to be effected by affixation of notice at the last known address of the respondent as well as on the notice board of the Court. It appears from the endorsement made by the process server on the summons that the respondent was not available at the given address and hence the summons was affixed on the given address. Endorsement as to affixation is not attested by any witnesses as according to the process server there was no witness available at the place of service. The Deputy Registrar has vide his order dated 9. 12. 94 accepted the service good in view of the order dated 2. 9. 93 in CA 790/86 by Usha Mehra, J.

( 3 ) WHEN the matter came-up for hearing before J. K. Mehra, J. , he opined that the service was not good inasmuch as it was not effected by affixation made in the presence of two witnesses. He also expressed his doubts on the view taken by Usha Mehra, J. in her order dated 2. 9. 93 referred to hereinabove. Hence the reference.

( 4 ) WE may notice the view of the law taken by Usha Mehra, J. in her order dated 2. 9. 93. Service on the respondent was affected by affixation on his last known address. The process server made a verification on oath that there was no witness available to evidence the affixation. She has held that Rule 6 of the Companies Court Rules, 1959 (hereinafter the Rules, for short) permits resort being had to the provisions of Order 5 of the CPC, Rule 17 whereof contemplates the service by affixation being evidenced by witnesses if available; meaning thereby if the witnesses may not be available the validity of the service would not be open to question. She also opined that the Original Side Rules framed by the High Court in exercise of the power conferred by Section 129 of the Civil Procedure Code were not automatically applicable to the Company Court. To sum up the view taken by Usha Mehra, J. , she has held :

" (1) the Original Side Rules framed by the High Court under Section 129 of the Code of Civil Procedure will not apply automatically to the Company Court. This Court is not bound by the practice and procedure adopted by the High Court on the Original Side or the rules framed thereunder; (2) The Company Court does not fall under the definition of Original Civil Jurisdiction as mentioned under Section 129 of the Code. Hence for the purpose of its practice and procedure it can either rely on its own rules or the provisions of the Code of Civil Procedure and even the High Court Rules. Since the Company Court Rules are silent regarding the service of the respondent by affixation, this mode of service has been relied on the basis of the provisions laid down in the Code of Civil Procedure. Therefore, for the purpose of knowing whether it ought to have been evidenced by one witness, we have to fall back on the provisions of Rule 17 of Order 5, which does not lay down that if the serving officer does not get the affixation witnessed from any witness then such affixation will be ineffective. On the contrary the word if any used in Rule 17 of Order 5 CPC, clearly shows that the Legislature had in mind that circumstances can arise when it will be difficult for the serving officer to find a witn