GANESHMAL BHAWARLAL Vs. KESORAM COTTON MILLS LTD

JUDGEMENT

(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.) MR. Sethia appearing on behalf of the petitioner next contended that assuming that notices were tendered to the partners of the petitioner, on their refusal to sign the acknowledgment of service copies of the notices ought to have been affixed on the outer door of the premises where they were residing and carrying on business and in the absence of such affixation the notices were not duly served and the decree ought to be set aside as a matter of course. MR. Deb appearing on behalf of the respondent admitted that there was no affixation of copies but he contended that the notices were served in accordance with law and that the Court has no power and ought not to set aside the decree.