Whether court can raise presumption that notice was duly served even if defendant denies his signature on acknowledgment?

Validity of notice cannot be raised in view of provisions of Section 106 of the T.P. Act since the suit in the present case was filed after expiry of fifteen days period of giving notice. Though the appellant-defendant has denied receipt of any such notice but AD Receipt Ex. 4 was produced on record bearing signature of Mukesh Kumar, the proprietor of appellant firm. Mere objection on behalf of defendant that the signature on AD Receipt were not of Mukesh Kumar is of no avail and the learned trial Court, in absence of any application for examining the signature on AD Receipt from FSL, rightly found the notice under Section 106 of the T.P. Act duly served and, thus, there is no force in the submissions of the learned counsel for the appellant defendant with respect to the validity of notice under Section 106 of the T.P. Act and the eviction decree has rightly been passed by the learned trial Court against the defendant-appellant.

12. A close scrutiny of above-quoted sub-section (4) of Section 106 of the T.P. Act makes it abundantly clear that law envisages notice under sub-section (1) in writing, signed by or on behalf of the person giving it, and either it be sent by post to the party, who is intended to be bound by it, or to be tendered or delivered personally to such party. The oral and documentary evidence, which was available on record in the matter, is clear and unequivocal showing written notice sent by respondent-plaintiff to appellant-defendant. The respondent-plaintiff has also produced acknowledgment receipt Ex. 4 bearing signature of Mukesh Kumar. During cross-examination, proprietor of the appellant firm, Mukesh Kumar, has very candidly admitted correct address of the addressee, but for denying his signature. Bare denial of the signature, without substantiating the same by cogent evidence, is not sufficient to dislodge presumption about service of notice. Therefore, both the Courts below have rightly invoked Section 27 of the General Clauses Act, 1897, which envisages that unless the contrary is proved, service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing the notice.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Second Appeal No. 186 of 2018

Decided On: 06.10.2018

 Mishra Electronics  Vs.  Jagdish Kumar Jat

Hon'ble Judges/Coram:

Pratap Krishna Lohra, J.

Citation: 2019(1) RCR(Rent) 7

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Whether person refusing to accept registered letter is deemed to have knowledge of its contents?

 Section 27 of the General Clauses Act, 1897 deals with the topic-'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it 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. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee . Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1402 of 1979

Decided On: 20.02.1981

 Harcharan Singh  Vs. Shivrani and Ors.

Hon'ble Judges/Coram:

V.D. Tulzapurkar, D.A. Desai and A.N. Sen, JJ.

Citation: (1981) 2 SCC 535

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Whether burden of proof will be on accused to prove that notice was not received by him in case of dishonour of cheque?

 In my considered view, in the present case, it is not as if no
legal notice was issued by the complainant to the accused. The legal
notice was duly issued and as per report on the receipt, the same could
not be served upon him because the accused was not available despite
the postal authorities attempting to serve him on more than one
occasions. Incidentally, a perusal of the statement made by the accused

under Section 313 Cr. P.C. will demonstrate that he has admitted the
factum of legal notice having been issued by the complainant to him.
Even otherwise, had his conduct been bonafide, then after the complaint
was filed in the Court by the complainant under Section 138 of the
Negotiable Instruments Act, 1881, nothing stopped the accused from
depositing the amount in issue before the learned trial Court. Further, in
my considered view, the legal position is that the drawer of the cheque
makes himself liable for prosecution under Section 138 of the Negotiable
Instruments Act, 1881 in case he fails to make the payment within fifteen
days of the receipt of the notice given to him by the drawee. Thus, the
accrual of cause of action is in fact the failure on the part of the drawer of
the cheque to pay the amount after receipt of the notice which gives rise
to the cause of action to the complainant to file complaint within the
statutory period prescribed under the Negotiable Instruments Act, 1881.
However, there may be unscrupulous persons/drawers who may manage
to get incorrect postal endorsements to defeat the claim of the drawee.
The moot issue is as to whether in such circumstances a drawee will be
without remedy or not. In my considered view, such like situation is duly
covered by the principles incorporated in Section 27 of the General
Clauses Act, which apply to a notice sent by post and it would be for the
drawer to prove that it was not really served and that he was not
responsible for such non-service.
18. In V. Raja Kumari Vs. P. Subbarama Naidu and another
(2004) 8 Supreme Court Cases 774 dealing with the case where notice
cannot be served on account of the fact that door of the house of the

drawer was found locked, the Hon’ble Apex Court has held that the
principles incorporated in Section 27 of the General Clauses Act will
apply in such like situation and it will be for the drawer to prove that he
was not really served and he was not responsible for such service.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 30 of 2016

Date of Decision: 27.05.2016

Sandeep Walia  Vs. Sanjeev Dulta 

Coram:
 Mr. Justice Ajay Mohan Goel, Judge
Citation: 2016 ALLMR(CRI)JOURNAL580

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When there is deemed service of notices and award under arbitration Act?

In my view, the stand taken by the petitioners in the
rejoinder that the petitioner no.1 does not reside at House No.247, Acoi,
Karaswada, Mapusa, Bardez, Goa – 403 507 is inconsistent and contrary
to the statement made in the petition. It is thus clear that the petitioners
have not come to this Court with clean hands. This Court in the case of
Apex Encon Projects Pvt. Ltd. & Anr. Vs. L & T. Finance Ltd. & Anr.
(supra) and in the case of Jasvinder Kaur Vs. L & T Finance Ltd. &
Anr. (supra) after adverting to the provisions of Section 3(1)(b) of the
Arbitration Act and Section 27 of the General Clauses Act has held that
the notices are sent by the Registered Post A.D. at the last known
addresses of the petitioners and the same have not been returned by the
postal authority and therefore, it would amount to a deemed service of
such notices and proceedings. In my view, the said two judgments
squarely apply to the facts of this case. I am respectfully bound by the
aforesaid two judgments.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.1231 OF 2014
Francisco A. D'Souza 
 Vs.
L & T Finance Ltd. 
 CORAM : R.D. DHANUKA, J.
 DATE :  30th April 2015
Citation:2016 (3) ALLMR803

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How to appreciate evidence if tenant takes defence that notice is not received by him?

In the case reported as AIR 1990 SC 1215 (Anil
Kumar v. Nanak Chandra Verma) it is held that there
cannot be hard and fast rule on the point as to how the

presumption available under section 27 of the General
Clauses Act can be rebutted. It is observed that it would
depend on the facts and circumstances of each case. In a
case the unchallenged testimony of tenant may be
sufficient to rebut the presumption. There cannot be any
dispute over this proposition. In this regard there are
many circumstances against the tenant. Notice was
addressed on the correct address of the tenant, intimation
of the notice was given by the postman but the notice was
not claimed and it was returned as “unclaimed”. Another
notice under certificate of posting was also sent on the
same address but it was not returned by the post office.
It is not the case of the defendant that his shop remained
closed at the relevant time but he has taken stand that he
used to visit other shop, of his brother and there is
possibility that at the relevant time he was not present in
the shop. His version is not acceptable and reliable. If his
shop was open he ought to have kept somebody to attend
his shop at the relevant time and in that case it can be
said that notice was tendered to his man like servant andintimation was given to him. He ought to have examined
said person who was attending his shop during his

temporary absence and so there is no convincing evidence
of rebuttal. Further, the suit summons was served on the
tenant at the same address. This Court has no hesitation
to observe that presumption available under the aforesaid
provision of General Clauses Act was not at all rebutted
by the tenant and the District Court has committed error
in holding that the evidence of the tenant on oath has
rebutted the presumption. In view of the observations
made by the Apex Court in the cases cited supra if the
version of the tenant is accepted in such cases it will be
practically impossible for the landlord to get decree of
eviction on the ground of default. The tenant is bound to
take all the possible defences and it is up to the Court to

decide as to whether there is truth in his defence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.70 of 2014

Anant Tulshiramji Bajaj, 
Versus
Sunil s/o Gajanan Rasne
 CORAM: T.V. NALAWADE, J.

 DATE : 30th JULY 2015

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What is Presumption regarding service of notice u/s 138 of NI Act?

 Section 27 gives rise to a presumption that service of 

notice has been effected when it is sent to the correct address by registered post. In view of the said 

presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to 

have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course 

of business. 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. [Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; State of M.P . v. Hiralal and Ors. [1996] 1 SCR 480 and ,

V. Raja Kumari v. P . Subbarama Naidu and Anr., 2005 Cri.L.J. 127]. It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is

not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the

return of the notice unserved.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.435 OF 2011 

Rekha Mahindra Shah V Gautam Umed Parmar

CORAM : S.C. DHARMADHIKARI, J. 

PRONOUNCED ON : 3RD APRIL, 2013 .1

Citation; 2013 (6) MH L J 147

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