Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4864/19 in Comm. Suit No. 2/19. 1 Order.
MHCC010132562019
Presented on : 18-12-2019
Registered on : 18-12-2019
Decided on : 28-02-2022
Duration : 2 years, 2 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4864 OF 2019
IN
COMMERCIAL SUIT NO. 2 OF 2019
M/S Chetan Traders ...Plaintiff
Versus
M/S K. S. Group and others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 28th FEBRUARY, 2022.
Shri Zubin Dalal @ Shri Vijay Dubey, Advocate for defendants no.2 to 4.
Shri P.D.Gandhi @ Shri Hardik Desai, Advocate for the plaintiff.
ORDER
1. Defendants no.2 to 4 have filed present notice of motion
for setting aside 'without written statement' order dated 21/08/2019
and for taking their written statement on record by condoning the delay
of 119 days. Perused notice of motion, affidavit in reply and rejoinder.
I have gone through the suit proceeding. Heard learned counsel Shri
Zubin Dalal for defendants no.2 to 4 and learned counsel Shri
P.D.Gandhi for the plaintiff.
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N/m No. 4864/19 in Comm. Suit No. 2/19. 2 Order.
2. Learned counsel Zubin Dalal for defendants no.2 to 4
submitted that defendants no.2 to 4 had appeared in the matter on
05/04/2019 when the Court had granted interim relief. He further
submitted that defendants no.2 to 4 filed vakalatnama, but they were
not served with writ of summons. He also referred order passed by this
Court on 05/04/2019, 17/11/2021 and 09/02/2022 as per which the
plaintiff was directed to serve writ of summons upon the defendants.
After pointing out these developments in the matter, he relied upon
observations of Hon'ble Bombay High Court in the case of Axis Bank
Ltd. V/s. Smt. Mira Gehani (N/m Commercial Division No.
196/2018 in Commercial Suit No. 159/2017 decided on
27/02/2019) in paras 96, 99 and 101. With the help of observations in
this case, he submitted that service of writ of summons is mandatory in
the commercial suit. He further submitted that defendants no.2 to 4
have not waived service of writ of summons. He prayed to allow the
notice of motion and to exhibit written statement placed on record.
3. On the contrary, learned counsel Shri P.D.Gandhi for the
plaintiff submitted that the defendants have admitted delay in filing
written statement. He further submitted that defendants no.2 to 4 had
appeared in the matter on 05/04/2019 and they sought time to file
reply in Notice of Motion No. 3183/2019 filed by the plaintiff. The
defendants again sought extension of time on 02/08/2021. Period of
120 days is lapsed and therefore, 'without written statement order'
came to be passed on 21/08/2019. According to him, period of 120
days has lapsed prior to situation of Covid19 pandemic arises. The
defendants are not entitled to the benefit of directions of Hon'ble
Supreme Court given from time to time extending the period of
limitation during pandemic period. He further pointed out contents in
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N/m No. 4864/19 in Comm. Suit No. 2/19. 3 Order.
affidavit in reply and submitted that personal difficulty is posed for
seeking condonation of delay. At the same time, reply is filed in Notice
of Motion No. 3183/2019 on 21/08/2019. According to him, the
defendants have no ground to get the delay condoned and file the
written statement on record. He has relied upon paras 9 and 11 in the
case of Suresh V/s. Municipal Corporation of Greater Mumbai and
others (MANU/MH/1804/2013) to state that filing of vakalatnama
and/or appearance of the parties through advocate amounts to service
of summons for all purposes. He further relied upon the case of Pravin
R. Geglani V/s. Beharilal Beniprasad Pvt. Ltd.
(MANU/MH/0036/1978) to submit that the Bombay City Civil Court is
the principal court of original civil jurisdiction in respect of matters
covered by the notification dated 20/01/1950 issued under Section 12
of the Bombay City Civil Court Act, 1948. He relied upon this citation
to state that observations in Smt. Mira Gehani's case (referred above)
cannot be relied upon because those observations are made by the
Hon'ble Bombay High Court while exercising original civil jurisdiction.
He also relied upon judgment of Hon'ble Delhi High Court in case of
Red Bull AG V/s. Pepsico India Hoardings Pvt. Ltd. & Anr. (C.S.
(Comm) 1092/2018 decided on 28/08/2019) and submitted that the
defendants had appeared in the said matter and Hon'ble Delhi High
Court considered the aspect of implied waiver by the defendant of his
right to have summons served upon him. He further submitted that
matter was referred for mediation and the defendant was believing that
he was not served with summons for filing written statement and
therefore, Hon'ble Delhi High Court had taken the written statement on
record. According to him, no such contingency is prevailing in the case
in hand. Last citation relied by learned counsel Shri P.D.Gandhi is,
National Spot Exchange Ltd. V/s. M.K. Proteins Ltd. & Ors. (N/m
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N/m No. 4864/19 in Comm. Suit No. 2/19. 4 Order.
No. 749/2015 in Suit No. 432/2015 decided on 26/07/2021 by
Hon'ble High Court of Judicature at Bombay). According to him,
Hon'ble Bombay High Court has created certain categories of cases as
per order in the said matter and the third category enumerated in para
5 of the order is applicable to the case in hand. He particularly referred
point C.1 in which it is mentioned that,
“In all cases where the service of the writ of
summons is wholly or partially complete, (i.e.
some or all of the defendants are served), but
where written statements have not been filed by
the served defendants, or where the defendants
are deemed to be served on account of the
Advocate having entered appearance, written
statements are to be filed within 30 days from
today.”
4. With the help of above referred citations, learned counsel
Shri P.D.Gandhi submitted that the defendants have waived service of
writ of summons and now, they cannot seek the relief of condonation of
delay for filing written statement. He prayed that written statement
may be rejected.
5. After considering rival submissions and material on record,
it is clear that the suit is originally registered as a 'Commercial Suit'. It
is not the case that the suit was registered as a 'Ordinary/Regular Civil
Suit' and it is reregistered as a 'Commercial Suit'. If the case of
National Spot Exchange Ltd. (referred above) is considered, it is
clarified that no written statement is to be accepted if 120 days have
passed since the date of service of the writ of summons. Decision in
Axis Bank Ltd. V/s. Mira Gehani (cited supra) is also relied upon in this
case and it is observed that applications under Order VII Rule 11 of the
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N/m No. 4864/19 in Comm. Suit No. 2/19. 5 Order.
CPC will be separately listed for directions. It is further observed that
where written statements have not been filed within the statutory
period, the suits will be listed for directions.
6. Citations of Suresh and Pravin Geglani are the citations in
the context of provisions of the CPC prior to amendment in the CPC as
per schedule to the Commercial Courts Act, 2015 (for short, 'the Act').
It is pertinent to note that specific limit of 120 days has been laid down
for filing written statement from the date of service of summons (writ of
summons) as per proviso to Rule 1 in Order V, proviso to Rule 1 in
Order VIII and proviso to Rule 10 in Order VIII of the CPC. The Court is
expressly prevented from accepting the written statement after the
expiry of 120 days period. Right of the defendant to file written
statement is forfeited after the expiry of 120 days period from the date
of service of writ of summons. In short, the defendant faces the
situation resulting into curtailment of vital right in the suit proceeding.
This is not the situation in ordinary civil suit and Order VIII Rule 1 of
the CPC is read as directory provision and the Court is permitted to
accept the written statement after the expiry of 90 days period in
exceptional circumstances.
7. If above difference of procedure applicable to the ordinary
suit and commercial suit is taken into consideration, there is no scope to
rely upon the authorities which are not touching to the provisions of the
Commercial Courts Act, 2015 and effect of the same. As date of service
of writ of summons is the starting point for counting limitation of 120
days to file written statement, service of writ of summons assumes
importance. If the plaintiff is permitted to enjoy exemption from
issuance of writ of summons to the defendant and to rely upon
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N/m No. 4864/19 in Comm. Suit No. 2/19. 6 Order.
appearance of the defendant in the matter, provisions of the amended
CPC can be said to have applied by adopting double standards i.e. (i)
by giving complete exemption to the plaintiff from playing his part in
the matter which is ultimately curtailing rights of the defendant and (ii)
by making the defendant to suffer by strictly interpreting proviso to
Rule 1 in Order V, proviso to Rule 1 in Order VIII and proviso to Rule
10 in Order VIII of the CPC. Such course is going to result into
conveniently applying provisions of the statute with relaxation to the
plaintiff from issuance of suit summons (writ of summons). At the
same time, adverse order forfeiting right of the defendant to file written
statement is passed on the basis of such relaxationgiven to the plaintiff.
In short, provisions of the law are being applied liberally for the plaintiff
and strictly for the defendant. Rigor of the statute cannot be relaxed
and tightened conveniently. Therefore, there is no scope to follow such
course of action.
8. Observations of Hon'ble Bombay High Court in Mira Gehani
V/s. Axis Bank Ltd. (cited supra) are applicable to the case in hand.
Service of writ of summons upon the defendant is mandatory.
Provisions of the Act are strictly interpreted as per observations of
Hon'ble Supreme Court in Ambalal Sarabhai Enterprises Ltd. V/s.
K.S.Infraspace LLP & Anr. (2020) 15 SCC 585. When question of
strict interpretation of provisions of the statute arises, there is no scope
to give complete liberty to one party from doing an legally necessary act
which is ultimately going to affect the other side. Admittedly, writ of
summons are not served upon any of the defendants in the case in
hand. In such circumstances, written statement placed on record by
defendants no.2 to 4 is liable to be accepted. Hence, I pass the
following order :
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N/m No. 4864/19 in Comm. Suit No. 2/19. 7 Order.
ORDER
1. Notice of Motion No. 4864/2019 is made absolute in terms
of prayer clause (a), (b) and (c).
2. Written statement filed by defendants no.2 to 4 on record
on 07/01/2022 is marked as Exh.19.
3. The proceeding of N/m No. 4864/19 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 28/02/2022. Mumbai.
1. Dictated online on : 28/02/2022.
2. Checked on : 01/03/2022.
3. Signed on : 01/03/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/03/2022. 3.20 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 28/02/2022.
Judgment/Order signed by P.O. on 01/03/2022.
Judgment/Order uploaded on 01/03/2022.
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