Case Note & Summary
The Petitioner, Metro Ortem Ltd, a public limited company, filed a Commercial Suit No. 3 of 2019 before the Bombay City Civil Court at Mumbai against the Respondent, Maharashtra State Road Transport Corporation. The Petitioner challenged the common order dated 08.04.2021 passed by the City Civil Court in Notice of Motion No. 1707 of 2019 and Application (Exhibit 4), which permitted the Respondent to file its written statement beyond the prescribed period of limitation and marked it as Exhibit 7. The core issue was whether the writ of summons must be served on the defendant when the defendant has already entered appearance and been served with a copy of the plaint and Notice of Motion. The Petitioner argued that the written statement was filed beyond the 30-day period under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) and Section 16 of the Commercial Courts Act, 2015, and that without service of writ of summons, the limitation period had not even started. The Respondent contended that it had entered appearance but denied receiving the plaint and Notice of Motion, and that the court had discretion to accept the written statement. The High Court analyzed the provisions of Order VIII Rule 1 CPC and Section 16 of the Commercial Courts Act, 2015, and held that the object of service of summons is to give notice to the defendant. Since the Respondent had entered appearance and was served with the plaint and Notice of Motion, the requirement of formal service of writ of summons was not mandatory. The court found that the trial court had exercised its discretion judiciously in allowing the written statement to be taken on record, and there was no error of law or jurisdiction. The petition was dismissed, and the impugned order was upheld.
Headnote
A) Civil Procedure - Service of Summons - Writ of Summons - Service of writ of summons is not mandatory if the defendant has entered appearance and is served with copy of plaint and notice of motion - The court held that the object of service of summons is to give notice to the defendant, and if the defendant has already appeared and received the plaint, the requirement of formal service is waived - The impugned order allowing the written statement to be taken on record was upheld (Paras 3-27).
Issue of Consideration
Whether the writ of summons is required to be served if the Defendant has entered appearance before the Court and is served with the copy of plaint and Notice of Motion.
Final Decision
The High Court dismissed the Writ Petition and upheld the impugned order dated 08.04.2021, allowing the written statement to be taken on record.
Law Points
- Service of writ of summons is not mandatory if defendant has entered appearance and is served with copy of plaint and notice of motion
- Order VIII Rule 1 CPC
- Section 16 of Commercial Courts Act
- 2015
- limitation for filing written statement
- condonation of delay
