In the High Court of Bombay
(Before G.S. Patel, J.)
Atlanta Limited
Vs
Metso India Pvt. Ltd.
Interim Application No. 425 of 2019 and Commercial Suit No. 765 of 2019
Decided on August 4, 2021,
Citation: 2021 SCC OnLine Bom 1594 : AIR 2021 Bom 300 : (2021) 5 AIR Bom R 627
The Judgment of the Court was delivered by
G.S. Patel, J.:— This otherwise routine application raises an important question in suits under the Commercial Courts Act, 2015 (“the CCA”). That Act sets an outer limit within which a defendant to a commercial suit must file his written statement. Im Axis Bank Ltd. v. Mira Gehani, Kathawalla J held that the Court has no power to extend time beyond that date.1 Time begins to run from the date when the writ of summons is served. But the CCA also says that the provisions of the Code of Civil Procedure, 1908 (“the Code”) are to govern. Where there is a conflict – say with the Rules framed by a Chartered High Court on its Original Side – the Code prevails. The issue before me is about this : the correct form and procedure of the writ of summons. And the conflict is this : the Bombay High Court (Original Side) Rules (“the Rules”) do not require a copy of the plaint to accompany the writ of summons. The relevant form of the writ of summons in the Rules has a note at its foot. This says that the served defendant may seek a copy of the plaint from the plaintiff or his advocate, and it will be furnished ‘on demand’. In contrast, Order 5, Rules 1 and 2 of the Code require the writ of summons to be accompanied by a copy of the plaint.
2. It seems that in the Commercial Division of this High Court on its Original Side, a wholly incorrect procedure is being followed. Although suits in the Commercial Division are governed by the CCA, and therefore it is the Code that applies to them and not the Rules, writs of summonses are being issued in the form under the Rules, not the Code, that is to say, without an accompanying copy of the plaint. When, therefore, in a commercial suit to which the CCA applies, and, consequently, the Code, and writ of summons is served without an accompanying copy of the plaint, can it be said that there is good and proper service of the writ of summons? If yes, then the question of limitation in filing the written statement arises. If not, and the service of the writ of summons is bad – no service at all – then there can be no question of the defendant having to face any question of limitation.
3. The application is by the Defendant (“Metso”) in a commercial suit. Metso seeks an order condoning a delay in filing its written statement. Mr. Andhyarujina for Metso says the delay is 78 days computed from the date when Metso received a copy of the plaint from the Plaintiff (“Atlanta”) or its advocates. The writ of summons was served without a copy of the plaint. If time is to run against Metso from the date of service of the writ of summons, then Metso is out of time, albeit by a few days. For Atlanta, Mr. Vashi would have it that the written statement is wholly out of time. Limitation can only be computed from the date of service of the writ of summons and nothing else.
4. The dates stamped on the court papers are discrepant. One stamp indicates that Atlanta lodged its plaint on 6th February 2019. But the docket of the plaint bears a rubber stamp (with the initials of some officer) saying that it was ‘filed’ on 17th May 2019. The writ of summons – a copy is annexed in the Interim Application – says on its first page that the plaint was ‘presented’ on 21st February 2019 and was registered, i.e. finally numbered, on 17th May 2019.
5. I cannot resolve these discrepancies. Luckily, in this particular case they do not matter much. But I would request the Prothonotary Senior Master and the Registrar-General to issue the necessary instructions to avoid this. Perhaps a form or farad-sheet of some kind is a solution. If this can be both digital (at the time of lodging, updated as the case progresses through the registry) and then a hard copy kept with the papers, there would be no such inconsistencies.
6. I will take the dates from the writ of summons. In any case, it is unlikely that the plaint was only ‘lodged’ on 17th May 2019 because it was verified on 6th February 2019. Therefore, it was most likely presented, i.e. lodged, on 21st February 2019. But if this is correct it means that Atlanta did not cure filing defects from 21st February 2019 to 17th May 2019.
7. There is no dispute that the Atlanta had the writ of summons issued only on 6th or 10th June 2019. This writ of summons was served on Metso at its Navi Mumbai address on 13th June 2019. The Bailiff’s report says so.
8. The writ of summons served on Metso was not accompanied by a copy of the plaint. Metso sought a copy of the plaint on 22nd June 2019. Atlanta or its lawyers despatched a copy on 24th June 2019. Metso received the copy of the plaint on 27th June 2019. Metso’s written statement was ready on 18th October 2019.
9. A copy of the writ of summons served on Metso is annexed at pages 15 to 20 of the Affidavit in Reply to the Interim Application. The first page of the writ of summons shows this:
IN THE MATTER OF JURIDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUIT NO. 765 OF 2019
Category Code – 1007
Abbreviation-COMS
10. On the last page of the writ of summons, there is this note : N.B. A copy of the plaint will be furnished to the defendant by the plaintiff or his Advocate on demand.
11. The form of the writ of summons in the Rules does not require a copy of the plaint to be sent with the writ of summons. The note at the foot of the writ of summons in this case is in fact taken from the form in our Rules. This is Form No. 9. The form has not changed after the CCA came into force.2
12. Form No. 9 is like this:
“No. 9
Writ of summons in a suit other than a Summary suit or a Matrimonial Suit
(Rule 69)
IN THE HIGH CORT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT No. of 20
__________________________________ Plaintiff;
Versus
__________________________________ Defendant.
To
__________________________________ Defendant.
Whereas the abovenamed plaintiff has instituted a suit against you, as set out in the plaint herein, whereof the following is a concise statement, viz:—
You are hereby required to file in this court an appearance in person or a vakalatnama and a written statement of your defence and serve a copy of the written statement on the plaintiff within 12 weeks from the service of this summons upon you.
And whereas the suit will be placed for directions on the board of the Judge in Chambers on the ………. day of …… 20.
You are hereby summoned to appear before the Judge in Chambers to answer the plaintiff’s claim on the said ……….. day of ………..20 at 11 O’clock in the forenoon, either in person or by an Advocate entitled to practice in this Court duly instructed and able to answer all material questions relating to the suit, or shall be accompanied by some other person able to answer all such questions, and
Take notice that on the day before mentioned after hearing parties who appear directions will be given by the Judge as to the date of trial and other matters concerning the suit, and
Take further notice that if you fail to file your appearance in person or a vakalatnama and written statement as directed above, of if you fail to appear before the Judge on the day before mentioned the suit may be ordered to be set down on Board on the same day or on any subsequent day as “undefended” and you will be liable to have a decree or order passed against you,
Witness ……………………………….. Chief Justice at Bombay aforesaid, this …………. day of …………..20
Prothonotary and Senior Master.
Sealer
The ………… day of …….20.
Advocate for the plaintiff:
Address:
N.B.– A copy of the plaint will be furnished to the Defendant by the Plaintiff or his Advocate, on demand.”
13. I preface the remaining discussion with a brief observation about the need to ensure that a copy of the plaint is sent along with the writ of summons. As we shall see, the Code specifically mandates this. For good reason. When a defendant is served with the writ of summons and called on to answer the plaintiff’s case by filing a written statement, it is surely axiomatic that the defendant is entitled to know the case he has to meet and what it is that he is expected to answer. He cannot possibly do this without a copy of the plaint in his hands. In Nahar Enterprises v. Hyderabad Allwyn3 the Supreme Court made just such an observation when it asked how a defendant, without a copy of the plaint and other documents, would ever be able to file his written statement.4
14. The plaintiff is in no way disadvantaged by being required to serve a copy of the plaint. After all, if the served defendant demands a copy, even the Note in Form 9 in our Original Side Rules says the plaintiff must make that copy available either himself or through his Advocate. From the form alone, without the plaint, I do not see how any defendant can ever enter a written statement. Why our Rules have departed from this entirely salutary and essential provision of the Code I cannot tell. But let us consider what this implies. In the civil court in Thane and in Pune – everywhere else, really – any writ of summons in any suit must be accompanied by a copy of the plaint.5 But alone in the Bombay High Court on its Original Side, a writ of summons need not have an accompanying plaint. I confess I am unable to understand the reasoning or logic to the deprivation of an essential document.
15. But the Rules are what they are until they are amended. I can only request the Registrar General and the Prothonotary and Senior Master to consider placing a submission before the Hon’ble the Chief Justice for appropriate action on the administrative side, whether through the Rules Committee or otherwise, for an urgent amendment to Form No 9, and possibly for the introduction of a specific Rule requiring a copy of the plaint to accompany all writs of summonses for all classes of suits on the Original Side of this Court.
Resumed on 5th August 2021:
16. Section 16 of the Commercial Courts Act, 2015 reads thus:
“16. Amendments to the Code of Civil procedure 1908 in its application to commercial disputes. – (1) The provisions of the Code of Civil Procedure 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.
(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.
(Emphasis added)
17. Sub-section (3) also references a ‘jurisdictional High Court’. That means a High Court with Original jurisdiction, such as ours. That in turn means that the provisions of the Code will override the Rules for the purposes of the CCA. It may be otherwise for suits outside the frame of the CCA in view of the decision of the Supreme Court in Iridium India Telecom Ltd. v. Motorola Inc.6.
18. This received judicial consideration in the extremely elaborate judgment of Mr. Justice SJ Kathawalla in Axis Bank Ltd. v. Mira Gehani7 In paragraph 54, he held:
“54. Therefore, in summation, with the introduction of Section 16(3) of the Commercial Courts Act, if any amendment brought forth to the Code by the Commercial Courts Act is in conflict with any rule of the Bombay High Court (Original Side) Rules, then and only then, will the provisions as introduced by the Commercial Courts Act prevail. In other words, only those rules of the Bombay High Court (Original Side) Rules which are in conflict with the provisions introduced by the Commercial Courts Act, will stand superseded by the introduction of the Commercial Courts Act. All other rules (which are not in conflict with the provisions introduced by the Commercial Courts Act) will continue to apply to Commercial as well as non-commercial suits.”
(Emphasis added)
19. For completeness, I should make reference at this stage to the provisions of Order VIII Rule 1 regarding a written statement, the Bombay Amendment and then the amendment to the Code by the CCA.
“ORDER VIII
WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM
1. Written statement. — The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
High Court Amendments —[Bombay]. — For the existing rule 1 and its marginal note, substitute the following as rule 1 and marginal note:—
“1. Written Statement. — The defendant may, and if so required by the Court, shall within such time as may be specified in this behalf or within such extended time as the Court may permit, present a written statement of his defence after serving a copy thereof on the plaintiff or his pleader on or before the date fixed for presenting the same in Court, or file in Court for the use of the plaintiff as copy of the written statement while presenting the same in Court:
Provided that the first adjournment for filing the written statement shall not ordinarily exceed four weeks and no further adjournment shall be granted except for reasons to be recorded in writing.”
*[Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes]
As per S. 16 of Act 4 of 2016, in its application to any suit in respect of a commercial dispute of a Specific Value, in Order VIII, in Rule 1, the proviso, the following proviso shall be substituted, namely:—
“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record”.
(Emphasis added)
20. On any harmonized reading, therefore, the 2016 amendment effected by the CCA is the one that governs. The defendant has only 120 days from the date of service of the writ of summons to file a written statement.
21. Therefore, in the Commercial Division of the Bombay High Court, the procedures in the Rules for service of a writ of summons do not apply. It is only the Code, as amended by the CCA, that will govern such commercial suits.
22. Order 5 of the Code deals with issue and service of the summons. It was not amended by the CCA. Rules 1 and 2 of Order 5 of the Code read:
“1. Summons. — (1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear —
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.
[Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes]
As per S. 16 of Act 4 of 2016, in its application to any suit in respect of a commercial dispute of a Specific Value, in Order V in Rule 1, in sub-rule (1), for the second proviso, the proviso shall be substituted, namely:—
“Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record”.
2. Copy of plaint annexed to summons. — Every summon shall be accompanied by a copy of the plaint.
High Court Amendments [Bombay]. — In order V, for the existing rule 2 and its marginal note, substitute the following as rule 2 and marginal note:—
“2. Copy of plaint to accompany summons. — Every summons, except in the case of one issued by the City Civil Court, shall be accompanied by a copy of the plaint with annexures, or if so permitted, by concise statement.”
(Emphasis added)
23. Let us return to the writ of summons issued in this case. I have set out the first page of the writ of summons above. The endorsement to the left says that it is a summons to answer plaint under Section 27 of the Code read with Order 5 Rules 1, 5 and 7 and Order 7 Rule 9. This is inaccurate as we see from the last page of the writ of summons at page 20, where we find an endorsement that a copy of the plaint would be furnished to the defendant by the plaintiff or his Advocate on demand. This Note originates from, and only from, Form No. 9 of the Rules. It is directly contrary to Order 5 Rule 2 of the Code as made applicable to commercial suits in the Commercial Division of the High Court. Therefore, following the decision in Mira Gehani, the Form in the Rules is in conflict with the Code; and the Code must prevail.
24. In this Interim Application, both sides seem to have proceeded on the basis that the writ of summons was in fact properly issued as required by law. If it was not, then there is a very serious issue under the CCA. The reason is that there is an absolute bar of 120 days that runs against any defendant; and it runs from the date of service of the writ of summons. This is what creates an anomaly. What is to happen, for instance, if the plaintiff does not supply a copy of the plaint within a reasonable period of time? In a given situation, the plaintiff may be left with no time at all to file a written statement. Let us take an extreme example at the outer limit of limitation under the CCA, the period of 120 days from the date of service of the writ of summons. Let us next assume that the defendant seeks a copy of the plaint within two days of being served with this writ of summons (unaccompanied by the copy of the plaint). But the plaintiff does not furnish a copy of the plaint till the 119th day from the date of service of the writ of summons, or, even worse, furnishes it on the 125th day after date of service of the writ of summons. The defendant is deprived of any reasonable opportunity to enter a written statement for no fault of his own.
25. This is indeed not the purport or ambit of the CCA at all. That Act seeks to fast-track the disposal of commercial suits. But that cannot come at the cost of equity and justice, including procedural fairness. No statute can be read like this. It is, therefore, impossible to accept the argument that time against the defendant for filing the written statement runs from the date of a bare-bones writ of summons without a copy of the plaint; and that it makes no difference when the plaintiff sends him a copy for no law or rule fixes any time within which the plaintiff must furnish a copy. The other side result in an equal absurdity, for no time is fixed either within which the defendant must seek a copy of the plaint from the plaintiff or his advocate. No statute can be read to lead to a self-annihilating or self-destructive or self-contradictory manner.8 It is plainly the duty of a court to construe a statute not literally but to give effect to its meaning and intent, and to avoid any interpretation that yields an absurdity. A construction that defeats the statute’s objective must be rejected.9
26. The consequence is inevitable. The writ of summons was wrongly issued. There is no valid service of the writ of summons at all. All that Metso can be said to have received is notice of institution of the suit. It was never served with the writ of summons properly so called. A non-conforming writ of summons is no writ of summons at all and service of a non-conforming writ of summons is no service at all. Technically speaking, therefore, no question of limitation in this case runs against the Defendant. And there is also no question of assessing any delay or the grounds for delay.
27. The Interim Application will have to be allowed. The Registry is to immediately accept the written statement of the Defendant, Metso. The Registry will take the written statement on file. I will separately issue directions in the suit. The written statement will be lodged within one week of this order being uploaded.
28. But this interpretation now has several other consequences for the entire class of commercial suits in the commercial division of this court. As Ms. Deokar for Atlanta correctly points out, there are suits in which writs of summons similar to this one have been issued. Some of those suits have received ex parte decrees. Some of those decrees may have been put into execution. I cannot go into that question of law. It does not arise before me. Any submission on that aspect of the law would be clearly obiter. Obviously, a party who hold such a decree may have to face the necessary consequences.
29. But this does not mean that directions cannot be issued to those suits that are as yet pending. Within my current assignment are commercial suits of the value of Rs. 100 crores and more. This will require an urgent intervention by the Registry to examine all suits in that category for a verification of how the writs of summons have been issued.
(a) Where written statements have been filed, there is no difficulty.
(b) Similarly where a writ of summons is yet to be issued, there is again no difficulty, except to direct the Registry to issue a practice note to ensure that any writ of summons in the commercial suit is now in the form as required by the Code, i.e. accompanied by a copy of the plaint, and not in Form No. 9 of the Rules.
(c) A consequential direction will be required so that the Registry can insist that a copy of the plaint for each defendant be lodged by the plaintiff for the purposes of issuance of the writ of summons.10
(d) But where non-conforming writs of summonses have been issued and written statements have not been taken on file, and there are pending applications for condoning delay, or such suits are to be listed for ex parte decrees, the Registry will need to seek directions on a case-to-case basis.
30. Another class of suits, i.e. commercial suits of a value of less than Rs. 100 crores are presently assigned to the court presided over by Mr. Justice DS Naidu. I request the registry to forward a copy of this order to Naidu J for his consideration and, if thought fit, appropriate directions.
31. There is one other aspect that suggests itself. As we have seen, the CCA has a limit within which a defendant must enter a written statement. There is an absolute cut-off time-limit in the Act. But there is no provision in the statute whatsoever within which a plaintiff must cure filing defects or a time within which a plaintiff is required to apply for a writ of summons. If the purpose of the CCA is to expedite and fast-track the disposal of commercial suits with a special procedure, this is not achieved by failing to specify a time within which the plaintiff must act. I believe it is the duty of a Court to be vigilant in ensuring that the Plaintiff is diligent in prosecuting its case. The Code contains provisions that allow a court to dismiss a suit if the plaintiff taken no steps. But within what time, given the serious time-constraint against the defendant we find in the CCA, should the Plaintiff be required to apply for a writ of summons? This is a matter that requires legislative or administrative intervention. If, for example, we allow a plaintiff ten days from lodging or institution of the suit to cure all filing defects, then it is surely not unreasonable to expect a plaintiff to apply for an issuance of a writ of summons within next ten days thereafter. Otherwise, we will repeatedly witness situations such as this case : where the writ of summons was issued more than 120 days after the date when the suit was first instituted. That is surely unacceptable.
32. I would request the Registry to consider framing appropriate guidelines, e.g., saying that if a plaintiff in a commercial suit does not take steps to have the writ of summons issued within a specified period, the commercial suit will be placed before the Court for appropriate orders, which may include dismissal of the suit itself, as permitted in the Code.
33. Ms. Deokar seeks a stay of the order directing the Registry to accept the written statement. There is no question of my staying the order in view of the nature of the writ of summons that Atlanta got issued. Apart from that, there is no explanation from the Atlanta why there was such a delay in issuing the writ of summons. Nothing prevented Atlanta from sending a copy of the plaint along with the writ of summons.
34. I am not inclined to stay this order. I do not believe it is appealable under the CCA. In any case, the Plaintiff is in no way prejudiced by this order. There is no decision on the merits of the suit. If the Plaintiff was wrong at the inception, and the correct law for service of the writ of summons has not been followed, there can be no question of limitation or delay. There is no means of lawfully validating a wrongful writ of summons. This is not a mere irregularity. It is not a curable defect. If limitation runs against a defendant from the date of service of the writ of summons, then it is axiomatic that the writ of summons must in the form the law requires and no other. If not, there is no service at all.
35. Where they are in conflict with the Code regarding commercial cases, our Rules simply do not apply. This is true for all aspects regarding services of the writ of summons. For instance, on 29th September 2008, the Prothonotary Senior Master issued a notice saying:
“IT IS HEREBY NOTIFIED for the information of the Advocates and those appearing-in-person that whenever the learned Counsel has filed Power of Attorney or Vakalatnama and appears for the Defendant/s Respondent/s etc., in the matter, there shall be no necessity of serving the Writ of Summons or filing Affidavit of Service.”
36. Kathawalla J considered this in Mira Gehani. He held:
112. In view of the above, it is clarified that the period of 120 days will commence from the date of service of the Writ of Summons and not the date a Defendant first enters appearance. In other words, a party or its Advocate/s can no longer rely on the above notification and avoid serving the writ of summons on the Defendant/s. However, in order to ensure expeditious disposal of Commercial Suits and in order to save time of this Court as also the office of Ld. Prothonotary Senior Master of this Court, in the event a Defendant/its Advocate enters appearance and by consent, agrees to waive service, the period of 120 days will commence from the date of such waiver. In such instance, there would be no requirement to serve the Writ of Summons. This will prevent the loss of days involved in serving the Writ of Summons and will expedite commencement of trial and consequently, disposal of Commercial Suits.
(Emphasis added)
36. Thus, service of the writ of summons as required by law is essential. It makes no difference at all if the error was on the part of the plaintiff or the court. The plaintiff can derive no advantage and the defendant can be put to no disadvantage on account of any such error.
37. Consequently, there is no question of ‘staying’ this order.
38. The Defendant’s Interim Application is made absolute and disposed of in these terms. In the facts of this case, no costs.
39. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
———
2 Chapter 15 of the Rules deals with ‘commercial causes’. This was simply a list of commercial causes that the High Court on its Original Side has always maintained. It pre-dates the CCA.
4 See also : Sureschandra Sarkar v. Gosaidas Pal, AIR 1976 Cal 87.
5 Except the City Civil Court. There is a Bombay amendment to Order 5 Rule 2 of the Code that is consistent with the Original Side Rules and deviates from the normal provisions of the Code.
8 Tirath Singh v. Bachittar, AIR 1955 SC 830.
9 Shamrao Parulekar v. District Magistrate, (1952) 2 SCC 1 : AIR 1952 SC 324.
10 Hopefully, this will also have the effect of keeping plaints shorter and less prolix. I have recently been confronted with plaints of 900 and even 2000-plus pages with several tens of defendants. A suit of, say, 1000 pages against 15 defendants will therefore need the plaintiff to lodge 15000 pages. The number of defendants is often not an option. The only choice will be to shorten plaints. Which, too, the Code demands.
