DENA BANK Vs. REFRIGERATION AND AIRCONDITIONING ENTERPRISES

JUDGEMENT

(1.) This is an application by the plaintiff / Bank praying that the defendant No. 1-partnership firm may be deemed to have been served on the grounds that the summons were duly served on the partners of the firm (defendants 2 and 3) who have been proceeded ex-parte. Defendant Nos. 4 and 5 (the contesting defendants) have filed a reply opposing the application.

(2.) Brief facts are : the plaintiff Bank filed the suit for recovery of Rs. 5,93,083.13/- along with pendente lite and future interest against the defendant No. 1-a partnership firm, defendant Nos. 2 and 3 (partners of defendant No. 1) and defendant Nos. 4 and 5 legal representatives of the deceased Smt. Satta Banerjee who was a partner of defendant No. 1 and also the guarantor. On 29th January, 1997 summons/notices were issued for service upon defendants by ordinary process as well as by registered AD post. On the same day Local Commissioner was appointed with the directions to proceed to the factory premises and office of the defendant No. 1 and to prepare the inventory of the goods lying therein. The Local Commissioner alongwith an official of the Bank reached the site but both the factory and office premises were found locked. Defendant No. 5 (Abhishek Banerji) was found at B-7, Kailash Colony, New Delhi (the registered office of the firm) informed the Local Commissioner that keys of the office of the firm was not with him. Thus the Commission could not be executed. On 17th March, 1997 Local Commissioner was authorised to break open the locks of me factory and office premises of the firm, if the defendant do not co-operate, and to prepare the inventory of the goods lying there, after due notice to the parties. Consequently, on28.3.1997Local Commissioner alongwith officer of the plaintiff Bank reached the site and Mr. S. Banerji (defendant No. 2) and Mr. S. Sikdar (defendant No. 3); partners of defendant No. 1 were present at the time of executing the Commission. Inventories of goods lying at factory as well as at the office premises were prepared. The proceedings were duly signed by the defendant Nos. 2 and 3. After receipt of the Local Commissioner's report, on 26th May, 1997 defendant Nos. 2 and 3 were restrained from removing the goods of the partnership lying at the factory premises and at the office. Even thereafter defendants 2 and 3 did not appear in the Court to contest the proceedings. Fresh summons/notice for- service on had to be issued. Ultimately, defendants 2 and 3, were served for 19th March, 1998. They appeared through Advocate who sought time to file die written statement and reply. Four weeks time was granted. The matter was ordered to be listed for hearing on 15.7.1998. The registered envelope sent at the registered office of the firm (defendant No. 1) at B- 7, Kailash Colony, New Delhi were returned unserved with the postal endorsement "office closed". None was present on behalf of defendant Nos. 2 and 3 on 15.7.1998 and the matter was renotified for 19.8.1998, again nobody appeared on their behalf therefore, they were proceeded ex-parte.

(3.) Fresh summons/notices were sent for service on defendant No. 1 on number of dates. However, the same were returned unserved. The plaintiff has now filed the above application praying that defendant No. 1 may be deemed to be served. The contesting defendants 4 and 5 have filed the reply opposing this application.