Formal Service Of Writ Of Summons Not Required In Transferred Suit If Appearance Made At Interlocutory Stage: Bombay High Court

The Bombay High Court stated that formal service of writ of summons not required in transferred suit if appearance made at interlocutory stage.

The Bench of Justice Abhay Ahuja stated that “since the rigours of the Commercial Courts Act and the amended CPC in relation to the service of summons do not apply to transferred Suits and considering that the captioned Suit was a regular Suit filed before the enactment of the Commercial Courts Act to which the Commercial Courts Act become applicable and that the Defendant No.1 had already entered an appearance at the interlocutory stage / filed Vakalatnama, there is no need for the Plaintiffs to thereafter serve a writ of summons as the object of serving writ of summons has been satisfied.”

On 13th July 2007, a judgment was passed by the Bombay High Court in the case of Tardeo Properties Pvt. Ltd. vs. Bank of Baroda, holding that entering appearance at the interlocutory stage/filing of Vakalatnama will not do away with the requirement of serving a writ of summons.

On 29th September 2008, a Notification was issued by the Bombay High Court stating that if a Defendant/Respondent has entered an appearance and filed its Vakalatnama, “… there shall be no necessity of serving the Writ of Summons or filing Affidavit of service.”.

On 21st September 2011, a judgment was passed by the Bombay High Court, in the case of Meena Ramesh Lulla and Others vs. Omprakash A. Alreja and Another, holding that if the Defendant enters an appearance/files Vakalatnama, formal service of writ of summons cannot be insisted upon and the suit is deemed to have been served.

On 19th August 2015, the Suit was filed by the Plaintiffs inter-alia seeking to recover an amount of Rs. 24,00,00,000/-. It is observed that the said Suit was filed as a regular Suit, i.e. prior to enactment of the Commercial Courts Act, 2015. On 23rd October 2015, the Commercial Courts Act came to be enacted.

Thereafter, on 21st October 2016, the Prothonotary & Senior Master passed an order converting the regular Suit to Commercial Suit and transferring the same to the Commercial Division of the Court.

The applicant submitted that where the Plaintiffs do not take any steps to serve the writ of summons within six months from the date of filing of the Suit under Rule 87 of the Bombay High Court (Original Side) Rules, 1980 the Prothonotary & Senior Master shall notify the Suit on board for dismissal.

The defendant submitted that since the Defendant No.1 having appeared at the interlocutory stage and filed it's Vakalatama, the writ of summons need not be served as the rigours of the amended provisions of the CPC do not apply to transferred Suits nor does the time period of 120 days and the Commercial Division of this Court under Section 15(4) of the Commercial Courts Act can fix the timelines at a case management hearing. That, therefore, there is no prejudice caused to the Defendant No.1.

After referring to few judgments the bench stated that this being a case of a transferred Suit in which the Defendant No.1 had previously entered an appearance at the interlocutory stage / filed Vakalatanama, there would be no need for the Plaintiffs to serve a writ of summons as the very object and purpose of service of writ of summons has become redundant and needless judicial time in passing directions for such service of writ of summons need not be wasted. There is, therefore, no necessity of formal service of writ of summons in the facts and circumstances of this case.

“Ergo the Defendant No.1 cannot seek dismissal of the captioned Suit, despite being notified of the Plaintiffs' claim. In case of transferred Suits, if the Defendant appeared at the interlocutory stage and filed its Vakalatnama, a writ of summons need not be served. The rigours of the amended provisions of the CPC do not apply to transferred Suits and the time period of 120 days also does not apply. It is only the Commercial Division of this Court under section 15(4) of the Commercial Courts Act which can fix the timelines. That being so, no prejudice would be caused to the Defendant No.1,” stated the bench.

In view of the above, the bench dismissed the application.

Case Title: Anil Dhanraj Jethani and another v. Firoz A. Nadiadwala and others

Case Number: INTERIM APPLICATION (L) NO. 15505 OF 2023 IN COMMERCIAL SUIT NO. 88 OF 2015

Counsel for Applicant: M.M. Vashi

Counsel for Defendant: Naushad Engineer

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