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CA/3786/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 3786 of 2010
In
CIVIL
APPLICATION No. 2951 of 2010
In
FIRST
APPEAL (STAMP NUMBER) No. 5517 of 2009
With
CIVIL
APPLICATION No. 2951 of 2010
In
FIRST
APPEAL (STAMP NUMBER) No. 5517 of 2009
=========================================================
ORIENTAL
INSURANCE CO LTD, THROUGH ITS AUTHORIZED SIGNATORY - Petitioner(s)
Versus
BANK
OF INDIA & 7 - Respondent(s)
=========================================================
Appearance
:
MR
MAULIK J SHELAT for
Petitioner(s) : 1,
None for Respondent(s) : 1, 4, 4.2.1, 4.2.2,
6,
RULE UNSERVED for Respondent(s) : 2 - 3, 5,7 -
8.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 04/05/2010
COMMON
ORAL ORDER
The
applicant of present application had preferred Civil Application No.
2951 of 2010. After hearing the parties process was issued. However,
process remained unserved qua opponent Nos. 2, 3, 5, 7 and 8.
Mr.
Trivedi learned advocate has entered appearance for opponent No. 1
and for opponent No. 4A and 4B Mr. Belsare learned advocate has
entered appearance while opponent No. 6 has been deleted.
In
view of the fact that the process issued by the Court remained
unserved qua opponent Nos. 2, 3, 5, 7 and 8, the applicant of Civil
application No. 2951 of 2010 took out present application seeking
permission to effect service of the process by mode of substituted
service. So as to afford another opportunity of effecting service and
with a view to making an attempt for service of process qua the
opponent, notice in present application (which seeks permission to
effect service of process by mode of substituted service) was issued.
The applicant has stated that it has filed affidavit of service,
stating, inter alia, that the concerned opponents are not residing at
the address known to the applicant i.e. last known and available
address.
Under
the circumstances and having regard to the facts stated above, while
granting relief prayed for in paragraph 4(A) of the Civil Application
No. 3786 of 2010, and while clarifying that if the unserved opponents
feel aggrieved by the present order it would be open to them to take
out appropriate application seeking recall of or modification in
today’s order, the relief prayed for in Civil Application No. 2951 of
2010 seeking condonation of delay of 35 days in filing the appeal
against the judgment and award dated 24.4.2009 passed by the learned
Trial Court in Civil Suit No. 1581 of 1986 is taken up for
consideration.
Having
regard to the averments made in the application No. 2951 of 2010 and
upon taking into account the submission by the learned advocate Mr.
Shelat, it emerges that the applicant has tendered sufficient
explanation and has made out sufficient cause in support of the
request seeking condonation of delay. It also comes out that the
applicant was not negligent in filing the appeal.
Hence,
the relief prayed for in para 5(A) of Civil Application No. 2951 of
2010 deserves to be granted. Accordingly the relief prayed for in
para 5(A) is granted and delay of 35 days caused in filing the appeal
is condoned. Rule is made absolute to the aforesaid extent.
So
far as the Civil Application No. 3786 of 2010 is concerned, the
relief prayed for in paragraph 4(A) is granted. The applicant shall
take necessary steps to effect service of the process by mode of
substituted service viz by affixing at a conspicuous part of the
residence/house or place of business of the unserved opponents (at
the last know and available address) and also by publication of
public advertisement in a daily newspaper of local language having
wide circulation in the area, where the unserved opponents last
resided and by publication in the Government Gazette. The applicant
shall follow the procedure prescribed under Order V Rule 17 and 20.
With
the aforesaid direction and clarification the Civil Application No.
3786 of 2010 is disposed of. The relief prayed for in para 4(A) is
granted. Rule is made absolute to the aforesaid extent and in the
aforesaid terms.
The
registry shall provide the draft of the advertisement to be published
pursuant to the aforesaid order. The applicant shall accordingly
issue the advertisement.
(K.M.THAKER,J.)
Suresh*
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