PUNDLICK ROWJI Vs. VASANTRAO MADHAVRAO

JUDGEMENT

(1.) I am satisfied that the summons in this case was not duly or properly served and that the defendant had no knowledge whatever of the institution or the hearing of this suit when the ex-parte decree was passed against him. The defendant was not in Bombay. The plaintiff's brother going three times to the house of the defendant with the bailiff to serve the defendant personally as mentioned in their affidavit of the 7 of June 1909, were mere pretences for the purpose of obtaining an order for substituted service. Laxman Jairam must certainly have known where the defendant was and I believe that the plaintiff also knew where he was". The affidavit on which the order for substituted service was obtained is most unsatisfactory. It makes important allegations on information and belief without disclosing the source of information and the grounds of belief. I am satisfied that the summons in this suit was not duly or properly served on the defendant.

(2.) On the merits I am clearly of opinion that the case requires careful investigation. In view of the order I propose to make I feel that it is very desirable that I should refrain from discussing the merits as far as possible more especially as the matter has been before me on affidavits only. We have a solicitor's clerk holding on for six years to a promissory-note for a large amount carrying interest at twenty per cent, per annum obtained from men involved in litigation,--the note saved from the operation of the Law of Limitation by a single endorsement at the end of three years of a small payment at the back of the note. We have the fact that an unsuccessful attempt is made three days before the expiry of the next period of limitation to transfer the note to one Dwarkadas Gungadas. We have also the fact that the plaintiff buys this note on the last day and files a suit on the very same day. We have the fact that twelve days after the plaintiff obtains the decree in his suit he attempts to transfer it to Chuggan Khushal. These facts coupled with the very serious allegations that the defendant makes, renders it imperative that there should be a thorough investigation in this case.

(3.) At the argument of the Rule, however, the learned Counsel for plaintiff-both the Advocate-General and Mr. Bahadurji-have strenuously contended that the plaintiff's application is barred by the law of Limitation under Art. 164, Schedule I to Act IX of 1908 which Act came into force in the beginning of this year. The period of time provided by that article is thirty days and this period begins to run from "the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree." I have come to the conclusion that the summons was not duly or properly served on the defendant the result being that time would in this case begin to run from the date the defendant applicant had knowledge of the decree. The decree would here mean the decree made in this suit in favour of the plaintiff on the promissory-note of the 21 of May, 1903, passed by the defendant and his father in favour of Luxman Jairam.