Hikal Limited v. Paxchem Limited

1. This Interim Application seeks dismissal of the Commercial Summary Suit (CSS) for failure to take out and serve the Writ of Summons and Summons for Judgement.

2. The reason for seeking dismissal of the suit is that though the CSS was filed on 28th September 2021, the Plaintiff failed to comply with the mandatory provisions of Commercial Courts Act, 2016 (‘CCA’) and Code of Civil Procedure, 1908, (‘CPC’) Bombay High Court (Original Side) Rules and Practice Notes issued by the Prothonotary and Senior Master, High Court Bombay and failed to serve the summons for judgement within the stipulated period of six months’ time.

3. Mr. Surve, learned counsel for the Applicant contended that the Defendant received intimation with regard to the matter for the first time only on 7th June 2022 i.e. after a period of 8 months from the date of filing of the suit on 28th September 2021. It is submitted that, as per the Plaintiff’s Advocate’s email, the Writ of Summons that was attempted to be served on the Applicant’s registered address was returned by the Post Office with a remark “left” which establishes that the Applicant was not served. He submitted that the Plaintiff was always aware about the Defendant’s Navi Mumbai address as well as the email address and chose not to serve the Defendant and hence the failure to serve is evident.

4. The Learned Counsel submitted that as per Order 9 Rule 5 of the CPC when summons returned unserved and the Plaintiff fails to apply for fresh summons within 7 days, the Court shall make an order dismissing the suit. It is submitted that the Plaintiff has failed to seek leave of this Court to issue fresh Writ of Summons and consequently the suit deserves to be dismissed. It is submitted that the Rules 87 and 227 of the Bombay High Court Original Side Rules ought to be followed and the Plaintiff who seeks to pursue the summary procedure must necessarily suffer the consequences of his failure to do certain acts within specified time mentioned. It is submitted that in view of the aforestated failure on the part of the Plaintiff the suit ought to be dismissed with compensatory costs.

5. In support of his contention Mr. Surve relied upon the following judgements:

1. Sky Shipping and Anr. vs Vodafone India Limited[1] (particularly paragraphs 2, 8 & 12 – 18)

2. Bankay Bihari G Agrawal vs M/s Bhagwanji Meghji & Ors.[2] (particularly paragraphs 10-13, 43 & 54)

6. Per Contra, Mr. Patil learned counsel for the Plaintiff submitted that the Defendant has been served with the Summons for Judgement in a timely manner. It is submitted that the CSS was 2016 SCC OnLine Bom 3580 2001 (1) MH.L.J. filed on 28th September 2021 and the six months period would end on 28th March 2022. It is submitted that the limitation period to serve the Writ of Summons stood suspended from 3rd October 2021 till 28th February 2022 in view of the judgement dated 10th January 2022 extending the period of limitation on account of Covid pandemic and consequently the Plaintiff had a period of 176 days from 1st March 2022 i.e. upto 23rd August

2022. It is submitted that an attempt was made to serve the Writ of Summons on the Defendant’s registered address available on the official website of MCA which was also the last known address to the Plaintiff by registered Post A.D. which was returned by the post office with a remark ‘left’ on 13th January 2022. It is submitted that the same was within the six-month period from the date of filing of the CSS. It is submitted that the Interim Application No. 3221 of 2021 and the CSS were served on the Defendant by an email dated 7th June 2022 and when it was duly acknowledged, hardcopies were served on the Defendant’s Solicitors on 8th June 2022. It is submitted that the Defendant filed their vakalatnama on 14th June 2022. The Writ of Summons was also served on 15th September 2022, in view thereof, it is submitted that a fresh writ of summons was not taken out and served. It is further submitted that the present Interim Application is taken out after the service of the Summons for Judgement and consequently this Defendant’s application deserves to be dismissed.

7. It was further contended that there is no specific time limit in the CPC under Order XXXVII Rule 4 to take out and serve the Summons for Judgement after the Defendant has entered appearance. In support of his contention Mr. Patil relied upon the judgement in the case of Emirates Islamic Bank-PJSC vs Chandra Dev Narain Singh & Ors.[3] Consequently, the service of summons for judgement on 15th September 2022 was within a reasonable time. It is lastly submitted that the reliance placed on Rule 227 of the High Court Rules is completely flawed. He submitted that the IA be rejected

8. Heard both Counsel. Upon perusal of the record, I discovered that the suit was presented on 28th September 2021, all office objections were cleared on 14th December 2021 and the suit was registered on 18th December 2021. The Writ of Summons was issued on 3rd January 2022. The Affidavit of service dated 20th January 2022 showed that the parcel containing the original Writ of Summons served through Registered Post AD was 2014 SCC OnLine Bom 472 received by the Sheriff’s office with the Return Envelope with the remark “Left”. The Defendants Advocates have filed Vakalatnama on 14th June 2022 on the basis that the suit was served on 9th June 2022. The Interim Application 3221 of 2021 filed on 23rd September 2021 along with Summons for Judgment was filed on 14th September 2022 was served on the Defendants and the Reply was filed on 26th September 2022.

9. It is contended that the Plaintiff ought to have applied for a fresh Summons within one month of the Writ of Summons being returned unserved. The Defendants have relied upon two cases as specified in paragraph No. 5 herein. In my view both the cases are distinguishable on facts. The issue in Sky Shipping & Anr (supra) was with regard to compliance of Rule 119 (4) – which the court held that it has to be complied with and cannot be treated as an empty formality. The case of Bankay Bihari (supra) was relied upon for canvassing the same proposition as was relied upon in Sky Shipping. Those two cases were dealing with a situation where the Plaintiff failed to take out summons for judgement within six months from the date of filing of the suit and its consequences on the summary suit. Whereas, in the present case the Plaintiff has duly taken out the summons for judgement. Moreover, the Defendants have also filed their reply for the same. Hence, in my opinion, the aforestated cases cannot be relied upon in the present case

10. In my view, the failure to apply for a fresh Writ of Summons within one month of its being returned unserved cannot result in dismissal of the suit. As provided by Rule 87 of Bombay High Court (Original Side) Rules, the Prothonotary and Senior Master shall unless good cause is shown, place the suit on board for dismissal. The suit would appear on the board for dismissal, and the plaintiff would be required to satisfy the Chamber Judge as to reasons, if any, which prevented him from taking out the fresh Summons for Judgement as was held by the Division Bench in the case of Bankay Bihari (supra). Hence dismissal is not an automatic consequence. In the present case the Prothonotary and Senior Master has not placed the matter on board for dismissal. Hence the contention of the Defendant will have no bearing as the Plaintiff cannot bear the brunt of the Prothonotary and Senior Master’s inaction.

11. In my view Rule 227, has no application in the present case. In the present case, the Defendant has filed its appearance. It has also been served with the Summons for Judgement and has filed its Reply thereto. It is after all of this, by an Interim Application it now claims that the Suit should be dismissed on account of failure to serve the Writ of Summons.

12. At this point, it would be profitable to place reliance on the Supreme Court’s judgement in the case of Auto Cars v/s. Trimurti Cargo Movers Private Limited and Ors. wherein in paragraph 26 it observed as under: