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balakrishnan (law associate)     30 July 2010

notice in 138 case

if private notice ordered and the same returned with endorsement ''intimation delivered''

is it effective service?

 



Learning

 21 Replies

adv. rajeev ( rajoo ) (practicing advocate)     30 July 2010

Inspite of intimation addressee failed to received the notice, it amounts to valid service.

Mugundhan (Lawyer)     30 July 2010

it is effective service

Ayub S. Pathan (Legal Adviser)     30 July 2010

Mr. Bala,

It's a deemed service. It reflect the avoidance of service by the addressee.

so Cheer up.

Best luck.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     31 July 2010

No it is not. Only intimation delevered can not be presumed avoidance.

B. Maadhava Reddy (Electrician)     31 July 2010

Sir,

I have received the SUMMONS of U/S 138 of NI ACT, CC-26791/10, on dated; 18/06/2010 from XV ACMM Bangalore. Please to say what is the reason this letter is coming to me, giving me full details of this letter.

 

Thanking You,

 

 

  

Anil Agrawal (Retired)     31 July 2010

 

if private notice ordered and the same returned with endorsement ''intimation delivered''

is it effective service?


Be more specific. What is private notice and who ordered? Who wrote the endorsement? Who went to deliver?

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     01 August 2010

The general clauses act section 27 says--

 

27.  Meaning of service by post.- Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     01 August 2010

Yes Mr Reddy its OK. Honble SC has discussed this matter in no of cases.

However since the summons is issued this becomes irrelevant.

Otherwise even the burden of proof is on sender that it was properly addressed at the correct address.

Adesh Kumar Sharma (Senior Associate Lawyer)     07 September 2010

Dear Mr.  Balakrishnan,

the best way is that you can summon the postal authority or postmen to give statement before the court and to explain that as to under what circumstances the postal department made the endorcement "INTIMATION DELIVERED". No other option wud suffice your cause.

In my opinion as per rules of postal authority if any article is sent through insured cover and addressee is absent and none is present or authoriesed to receive such article on behalf of addressee, then the postman leave an intimation to any family member that there is an article in such name. Then he or she, who is addressee can go to the postal department and collect the article.

Therefore if none turns up to receive the article, then in such case it wud be deemed as proper service upon the addressee.

Thanks 

Anil Agrawal (Retired)     07 September 2010

Postman's statement has no validity. He may say anything. Postmen keep changing. A postman delivers hundreds of articles everyday to hundreds of people. How does he remember that a particular article was delivered to a particular person on a particular day in a particular locality. Somebody is trying to pull wool over our eyes. The proof that is required is that the notice was received by the drawer. If there is no written acknowledgement (acknowledgement due receipt) or postal receipt duly signed by the drawer, it is all in the realm of fantasy.

Adesh Kumar Sharma (Senior Associate Lawyer)     09 September 2010

Mr. Aggarwal if don't have any legal knowledge then you should not comment on this forum. For your kind information I wud like to tell you if an article is being sent through registered cover, then the postal authority maintain the status of its movement uptill its destination. You can find it out on the site of Indian Post by entering its EMS number and its called tracking of the article. 

The postman is not called by the court to give its statement, but is always directed to come with all the record pertaining to the matter. So dont try to mislead the others unless you are sure of it.

You read the attached judgment of the Supreme Court, which is yet not overruled and is an authority on the issue of delivery of demand notice.

This is forum for the experts who can provide some legal opinion, not for them who are intended to give a layman opinion.

Better you keep this thing in your mind for future before commenting on an opinion.


Attached File : 6 6 supreme court judgment on delivery of demand notice.doc downloaded: 97 times

Anil Agrawal (Retired)     09 September 2010

''intimation delivered'' is not the same as

This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed.

Why would the postman make such an endorsement? 

It is a fact that I am not a qualified lawyer and I am grateful to you for reminding me of my limitation.

If any of the parameters laid down by the court for service of the notice as above is fulfilled, yes, the notice would seem to have been served. But "intimation delivered" by postal authorities, is not what the court meant. For any postal article, the postal authorities may say "intimation delivered" and how do they know that it was an intimation by way of notice? Did they tear open the envelope and read the contents? Tomorrow they will say money order delivered, insured parcel delivered, passport delivered, and the list would be infinite. Have the postal authorities power to open the envelope and read the contents and then come to conclusion and that it was notice u/s 138 and it has been delivered without the drawer signing the acknowledgement.

I humbly submit that I have no intention of entering into a slanging match on this topic. My common sense does not permit me, even without being a trained lawyer, to accept the concept of "intimation delivered".


Adesh Kumar Sharma (Senior Associate Lawyer)     10 September 2010

Mr. Aggarwal, thats why i told you in starting that a person just need to summon the postman to make statement that under what circumstances he made such an endorsement. There is no other solution. Further with no office i wud again say that the law does not permit to use common sense unless there is no specific provision of law.

I am telling you all this because  in more than 40 cases i hv called the post master alongwith record of a particular article sent in the name of specific person on a specific destination. 

you please go through the attached judgment, whrein the Delhi High Court has made it mandatory to file the internet generated  tracking/delivery report in every case filed under section 138 of NI Act.

What wud happned if we don not receive back any aknowledgment and there is no tracking report on the site of Indian Post. My dear friend we do hav no other option to call the post master/postman to disclose that as to where the article was delivered. And i hv done it many cases and it a general practice of the court. You just need to brush up your knowldge about court procedure.

It is very easy now a days to get any kind of postal endorsement, you know wot i mean to say. So it is necessary to call the postman to make the statment befor court.

Thanks


Attached File : 7 7 mandate to file delivery report of the notice.doc downloaded: 112 times

Adesh Kumar Sharma (Senior Associate Lawyer)     10 September 2010

Mr. Aggarwal if you need den i can uplode the order of the court and format of the summon, which were issued to the postmaster to come alongwith the record of the delivered article.

14 cases are coming up on 17.09.2010 beofre the Metropolion Magistrate of Dwarka District Court, Delhi for the same purpose. If you need to know how is it done den you can be present overhere to get know the procedure.

Thanks


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