Rajdhani Marmo & Tiles Pvt.Ltd.& … vs Kimbar Lay Engineer Pvt.Ltd on 1 April, 2010

CMA-324/09-Shri Rajdhani Marmo & Tiles Pvt.Ltd.& Ors.Vs. Kimbar Lay Engineers Pvt. Ltd.
                                                                      Judgment dt.1.4.10

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               S.B. CIVIL MISC. APPEAL NO.324/2009
             Shri Rajdhani Marmo and Tiles Pvt. Ltd. & Ors.
                                 Vs.
                     Kimbar Lay Engineers Pvt. Ltd.

Date of judgment                       :                   1st April, 2010

              HON'BLE DR. JUSTICE VINEET KOTHARI

Mr. B.L. Choudhary for the appellants.
Mr. Nikhil Dungawat for the respondent.

                                           -------

1.             Heard learned counsels.



2.             This appeal is directed against the order dated

14.11.2007 whereby the learned court below rejected the defendant's

application under Order 9 Rule 13 C.P.C. for setting aside the ex-

parte decree passed against them.



3.             Learned counsel for the appellant-defendants that the

notices on the limited company registered under the Companies Act

were required to be served on the Managing Director or the Secretary

of the Company as per Order 29 Rule 2 C.P.C. and therefore, the

service on the accountant Chunni Lal could not be treated as

sufficient and therefore, the ex-parte order deserves to be set aside.



4.             On the other hand learned counsel for the respondent-

plaintiff Mr. Nikhil Dungawat submits that the service of the

summons was duly effected on the defendant company, therefore, the
 CMA-324/09-Shri Rajdhani Marmo & Tiles Pvt.Ltd.& Ors.Vs. Kimbar Lay Engineers Pvt. Ltd.
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rejection of application under Order 9 Rule 13 C.P.C. is justified.



5.             Having heard learned counsels and upon perusal of the

reasons given in the impugned order dated 26.11.2008 passed by the

learned court below, this Court is satisfied that the summons of the

suit by the learned trial court were not properly served on the

prescribed authority in accordance with the Order 29 Rule 2 C.P.C.

for limited Company registered under the Companies Act, the

prescribed officer for accepting such service is any Director or

Managing Director of the Company or Secretary or duly authorized

officer of the Company. It is not the case of the respondent-plaintiff

that the said accountant Chunni Lal was the prescribed officer of the

said Company to accept such summon. Therefore, service on the said

Accountant cannot be treated as sufficient.



6.             Consequently, this appeal is allowed and the impugned

order dated 26.11.2008 as well as the ex-parte decree dated

14.11.2007 is set aside and the parties are directed to appear before

the learned trial court afresh in the first instance on 3rd May, 2010. In

view of the time lapsed, the learned trial court is requested to expedite

the trial. No costs.

                                                 [ DR. VINEET KOTHARI ], J.

item No.55
babulal/