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Service, documents / Notices of, Presumpt


AIR 2011 SC 1150

PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:

Para 13: This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. V/s. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. V/s. State of Maharashtra, JT 2010 (12) SC 287.

Para 14: In Gujarat Electricity Board & Anr. V/s. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under:

"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service." (Emphasis added)

Para 15: The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.


2015 (3) SCC 605

Para 26: In our considered opinion, there lies a distinction between non- service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action "illegal" whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case.

Para 27: In our considered opinion, therefore, it is mandatory on the part of the State to serve a proper notice to a person, who is liable to pay any kind of State's dues strictly in the manner prescribed in the Regulation. It is equally mandatory on the part of the State to give prior notice to the defaulter for recovery of dues before his properties (moveable or/and immoveable) are put to sale in the manner prescribed in the Regulation.

GENERAL CLAUSES ACT 1897: Service of Notice: Section 27 (section 28 of Bombay General clauses Act 1904 and section 114 of Indian Evidence Act, 1872): SC has held that once a notice is sent by Regd Post on correct address to the drawer, the mandatory requirement of issue of notice in terms of clause (b) of Section 138 of NI Act, 1881 stands complied with. C C Alavi Haji versus Palapetty – (2008) 1 Mah LJ 44 at P. 51.

 Notice – deemed notice – JT 2010 (12) SC 577

Notice “refused”: Srikand Jain versus B K Plastic Ind – AIR 1986 Cal 29 at p.30.

Rebuttal: Vasco Co-op Credit Soc Ltd versus Shobha D Koragaonkar 2005 CrLJ 2465 at p.2469, 2470 (Bom); Dunlop India Ltd versus State ofWB – 1991 (1) Civil LJ 29 at p.30 (Cal)

P T Thomas versus Thomas Job – (2005) 6 SCC 478 at p.484;

AIR 1989 SC 630.

Vinod Bahri versus H C Batra – 134 (2006) DLT 9 at pp. 15, 16 (Delhi)(DB).

R Sridhar versus T K Rajendra Sha – 2008 (1) CTC 195 at p.201 (Mad)

Speed Post: H Fathima versus State govt of TN – 2001 (4) RCR (Cr) 34 at pp.34, 35 (Mad)

Menon Admabhai Haji Ismail versus Bhaiya Ramdas Badiudas – AIR 1975 Guj 54 at p.60.

K Bhaskaran versus Sankaran Vaidhya Balan – 2000 C Cr.LR 94.

Sharda Pradas alias Chhulli versus Addl Dist Judge Allahabad – 2005 All LJ 1715 at pp.1716, 1717 (All).

Roopchand Rangiladas versus Haji Husain Haji Mohamed – 16 Bom LR: AIR 1914 Bom 31.



Sandeep Jalan

Advocate

Law Referencer: https://www.vakeelkanumber.com/



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