C A BALU Vs. G JOSEPH RAJ

JUDGEMENT

(1.) THIS Original Side Appeal is directed against the order of the learned single Judge of this court in insolvency jurisdiction in Application No. 391 of 1989 in I.P. No. 46 of 1989. I.P. No. 46 of 1989 was taken out by the first-respondent herein as petitioner therein under S. 9(1) (d) (ii) and (iii) of the Presidency Towns Insolvency Act, 1909, hereinafter referred to as the Act, for adjudication of the respondent therein?the appellant herein as an insolvent on the ground the respondent departed from his dwelling house or usual place of business or otherwise absented himself and secluded himself so as to deprive his creditors of the means of communicating with him. It is bet ter we go back to and refer to the parties as per their array in the main insolvency petition, I.P. No. 46 of 1989. The insolvency petition was admitted by this Court, and on 10-7-1989 the learned single Judge of this Court in insolvency, ordered no'ice returnable by two weeks. Thereafter the matter had gone before the Master of this Court with regard to completion of service on the respondent. A notice issued on 11-7 1989 was taken by the learned counsel appearing for the petitioner by registered post, acknowledgement due, to the address of the respondent as ?Mr. C.A. Baloo, proprietor Jayasakthi Chits & Finance No. 225, Lakshmanaswamy Road, 7th Sector, 36th Street, K.K. Nagar, Madras-600 078?. It must be noted here that in the Insolvency Petition, the petitioner gave the address bf the respondent as at No 34, Venkataraman Street, T. Nagar, Madras-600 017. The notice taken by registered post by the learned counsel for the petitioner was not to this address but to the address, as noted above. In the body of the Insolvency Petition, the petitioner has stated as follows:

(2.) THE notice taken by registered post, acknowledgement due, was not returned, when the Master of this Court took up the matter on 27-7-1989 and it was ordered ?Await acknowledgement, call next week.? On 3-8-1989, the matter again came up before the Master of this Court and it was ordered ?Covers were returned ?as no such person? ? fresh notice through Court?two weeks?. We find the notice along with the cover sent by registered post, acknowledgement due, amongst the records of the case and the endorsement on the cover supports the order made by the Master of this Court. On 17-8-1989, the Master of this Court made further orders as ?Steps taken; await two weeks.? Steps have been taken through Court for service on the respondent at No. 34, Venkataraman Street, T. Nagar, Madras-600 017. On 31-8-1989, the matter came up again before the Master of this Court, and he passed orders as ?Await, two weeks?. In the meanwhile, on 28-8-1989, the petitioner took out Application No. 286 of 1989 for ordering substitute d service by publication in one Tamil daily in Madras city; by affixture as the last known place of address and by affixture on the Court Notice Board. On 6-9 1989, Application No. 286 of 1989 was brought before the learned single Judge sitting in Insolvency and that application was ordered as prayed for. In the meanwhile, the notice, taken through Court, had been returned by the Bailiff with his endorsement dated 31-8-1989, and he had noted that the respondent could not be found at No. 34, Venkataraman Street, T. Nagar, Madras-600 017. It is true that the endorsement of return of the Bailiff dated 31-8-1989 was not there at the time when Application No. 286 of 1989 was filed on 28-8-1989. But, we do not get any indication that the endorsement of return of the Bailiff, dated 31-8-1989, was placed before the learned single Judge of this Court, sitting in Insolvency, when Application No. 286 of 1989 was ordered on 6-9-1989.

(3.) IN Chockalingam v. Rajarathnam 1 , a Bench of this Court dealing with more or less similar situation and facts, stressed the importance of conforming to the conditions prescribed in O 5, R. 20 of the Code, and in our view, it will be worthwhile to extract fhe relevant passage occurring in the said pronouncement, as follows :