Service of notice ...
tdeli
(Querist) 07 April 2012
This query is : Resolved
Hello,
1.If a notice has to be served as per Section 106 of the Transfer of Property Act, will it be deemed to be served if the notice is served on an incomplete address. e.g the notice had to be served in this manner-
Address
Area
City
Pin Code
but it was served in the following manner-
Address
City
Pin Code
The name of the locality was missing and the Pin Code has 5 different localities under it .. will it be deemed to be served if Regd. Ad says Information given but no one came to collect it and
UPC was sent to the wrong address.
If possible any case laws on the subject please...
Thanks...
Raj Kumar Makkad
(Expert) 07 April 2012
If the personal service was not made, how acknowledgement contained the term that the intimation given?
If no information was given then also the respondent has come to know about the litigation now, so he can get the proceeding set aside if the same has been done against his interest. Generally courts take a lenient view in condoning such delay.
tdeli
(Querist) 07 April 2012
The case is going on for 10 years now though the defendant had rebutted the presumption that the notice was served on him in his petition and his statements and now the case is in the stage of arguments and he is taking the plea that the notice of demand was never served on me and thus the case does not stands at all.
Thanks...
adv. rajeev ( rajoo )
(Expert) 07 April 2012
He has to amend his written statement, unless there is no thing about the service of notice u/s 106 TP act , at this juncture he cannot raise this issue.
Raj Kumar Makkad
(Expert) 07 April 2012
If the defendant change his statement at this stage, he is definitely going to lose his case on this ground. One should approach the court with clean hands.ch defendant cannot be allowed to take his admission back without specifically obtaining the permission of the court on this aspect.
ajay sethi
(Expert) 07 April 2012
if regsitered post intimation is given it indicates that he was properly served .
tdeli
(Querist) 08 April 2012
The defendant said from the very first instance both in his Reply to the Petition filed in the case,his Affidavit- Evidence in Chief and in his Respondents Evidence that the notice of demand to be served to him as per section 106 of the Transfer of Property Act was never served on him and the facts of the case are that the Address given on the Notice was Incomplete as mentioned earlier without the name of the locality.
Will his plea that the case should be quashed as the principal requirement of filing of the case by the petitioner of serving the notice was not met by the Petitioner.
Thanks ...
V R SHROFF
(Expert) 08 April 2012
INTIMATION GIVEN MEANS DEEMED SERVICE OF NOTICE. SO NOTICE WAS SERVED.
He recd Notice / Summon of Court on the same Address & appeared.
So this Argument of Non Service will not affect Judgement.
What was in Evidence?? What was proved??
tdeli
(Querist) 08 April 2012
The notice was served by hand to us by the court and it had the correct address.
Later again the petitioner had sent notices to the L Rs of the defendants but now they were sent at the correct addresses.
INTIMATION GIVEN MEANS DEEMED SERVICE OF NOTICE. SO NOTICE WAS SERVED.
This could be to the wrong person by the Post Office as the name of the locality was not mentioned in the address and under that pin code comes 15 diff. localities.
Thanks...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 April 2012
You are defendant or plaintiff.
If you are defendant than even at this late stage file an application for settlement and trial on a prelem issue regarding maintainability of suit for want of notice.
If the court does not settle the issue and hold trial on it go on this issue alone for revision.
OTHER WISE WHAT OTHER LD EXPERTS ARE SUGGESTING WILL HAPPEN SINCE-
If there is a possibility of several things going wrong, the one that will cause the most damage will be the FIRST to go wrong.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 April 2012
Please find below experts from a judgment of Mumbai High court though related to Bombay rent act but the court has dealt with the issue of notice under 106 of TP ACT.
C.R.A. NO.52 of 2010- MUMBAI HIGH COURT AURANABAD BENCH.
9. Learned Principal District Judge did not evaluate the findings in proper perspective and reached to an inappropriate finding. This situation has created may-hem to the substantial right which the statute provide in favour of the tenant as the very language of Section 15 of the Maharashtra Rent Control Act, 1999 comes with a rider "no ejectment ordinarily to be made if the tenant pays or is ready and willing to pay standard rent and
permitted increases."
Clause (2) of Section 15 ordains, "No suit for recovery of possession shall be instituted by a landlord". Such restriction is in the context of serving a notice as is indicated in Section 106 of theTransfer of Property Act, 1882.
10. The learned counsel for the landlord repeatedly harped on the effect of service at the residence of any person. However, that eventuality will not be germinating as the matter revolves to serving the tenant through his son at commercial suit premises.
11,12,13…….
14. The observations of the learned Principal District Judge on C.R.A. NO.52 of 2010
the facts being not properly evaluating the correct position, requires to be set aside. Civil Revision Application is allowed. The order of learned Principal District Judge is set aside. The dismissal of Regular Civil Suit No.126/2004 is confirmed. Rule made absolute. No costs.
K.U. CHANDIWAL
JUDGE
Mohanlal S/O Ukchand Soni vs All R/O Lane No.4, Dhule on 20 December, 2010
Indian
tdeli
(Querist) 08 April 2012
I am a defendant and the case is in the stage of Final Arguments ...
(If you are defendant than even at this late stage file an application for settlement and trial on a prelem issue regarding maintainability of suit for want of notice.
If the court does not settle the issue and hold trial on it go on this issue alone for revision.)
Why are you calling it A LATE STAGE when i have always raised this issue from day one in -
1.My Reply to the Petition filed against me,
2.My Evidence in Chief- Affidavit,
3.My Respondents Evidence/Cross Examination
4.And Now during the Arguments.
Should i had to go through some other course during the case by raising the issue earlier Or
Can i raise this issue now during the arguments or have i lost my chance at this stage.
Thanks...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 April 2012
There are two aspects of your problem argue and get satisfied and other is getting results.
Courts do not work like a math machine as many people think or believe . For any set of evidence there can be various logical assumptions and that is why there are revisions and appeals and writs and what not in legal system.
And if you want to win nothing should be left to chance.
Since I am a defense advocate and face such problems regularly and so from my experience I have suggested that instead of your current strategy which is not 100 % correct insist for settlement of prelim issue and its trial on the point of issue and receipt of notice.
CHOICE IS YOURS.
tdeli
(Querist) 08 April 2012
I got it so at this stage of arguments you suggest me to move an application regarding quashing of the case due to no notice served instead putting that plea into arguments...
Thanks...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 April 2012
Keep cool and move with proper steps, no QUASH in civil proceedings.
Move an application for settlement and trial of preliminary issue that the suit is barred for want of proper notice and hence not maintainable.
After issue is framed there will be regular trial on this issue alone by evidence, cross and than arguments and final order.
You have scope of revision if prelim issue is not settled or if settled it is decided against you.
So instead of trial of the whole suit you must insist for trial of this preliminary issue first since it goes to the root of the case.
tdeli
(Querist) 08 April 2012
Oh My God...
I have mentioned that the Trial is on for 10 years now and Cross examination are long over and now we have reached the stage of Final Arguments where i am taking this plea of non issue of notice which we had also raised at the time of our petition right at the beginning .. can i argue about this at this stage of arguments ...that's my only question ...
Thanks ...
