Bombay High Court Clarifies Limits of Summons Service in Commercial Litigation

In a sharply worded order that underscores the procedural safeguards governing summons in civil suits, the Bombay High Court has held that defective or unproven service of a writ of summons cannot result in forfeiture of a defendant’s right to file a written statement. Justice Gauri Godse allowed the defendants in a long-pending commercial suit to file their defence and imposed costs of ₹50,000 on the plaintiff for attempting to rely on discredited service documents.

A Seven-Year-Old Suit Stumbles Over Unresolved Service

The dispute originates from Commercial Suit No. 6 of 2018 filed by Cherag Balsara against Bina Ramnik Chawda, Khushali Ramnik Chawda and Shastriji Realtors Pvt. Ltd. Despite an earlier bailiff’s affidavit filed in 2019 claiming postal delivery, the court had already recorded in February 2022 that the documents were insufficient to prove service on each defendant separately. Subsequent orders in March and April 2022 reinforced that no valid service stood proved.

Rather than effecting fresh service, the plaintiff’s advocate merely called upon the bailiff in March 2026 to file another affidavit relying on the very same annexures. The fresh affidavit, tendered on 24 March 2026, once again triggered judicial scrutiny.

Plaintiff’s Claim of Deemed Service Meets Rigorous Scrutiny

Counsel for the plaintiff contended that the proviso to Order V Rule 9(5) CPC, read with Section 27 of the General Clauses Act, created a presumption of valid service when the summons had been dispatched by registered post with acknowledgement due. Reliance was placed on paragraphs of the 2026 affidavit asserting that packets were properly addressed, prepaid and never returned undelivered.

The court examined the annexures page by page. Postal receipts were found illegible, original documents absent from the record, and acknowledgements bore mismatched names and signatures. One acknowledgement was in the name of “Shastriji Construction” and signed “Aarti”, while tracking reports failed to link any particular packet to the correct defendant. The bailiff himself admitted that an earlier tracking report had been erroneously annexed in 2019.

Defendants Highlight Years of Procedural Lapses

The defendants maintained that they had never received the writ of summons along with the plaint and its annexures. They pointed out that the court had consistently recorded the absence of proof of service and that no fresh writ had ever been issued or served. They therefore sought permission to treat their earlier reply to the notice of motion as their written statement and to file an additional statement if necessary.

Justice Godse found the defendants’ grievances fully justified. The repeated attempts to rely on identical, already rejected documents revealed a troubling pattern of procedural non-compliance.

Judicial Rebuke of Mechanical Affidavits and Court Processes

The judgment contains a detailed examination of the Bailiffs’ Manual and the Bombay High Court (Original Side) Rules. Rule 76 permits service by registered post, yet the safeguards prescribed in the Bailiffs’ Manual for drawing up a proper return remain mandatory. The court observed:

> “It is shocking that, despite the aforesaid orders, the learned advocate for the plaintiff issued a letter dated 23rd March 2026, calling upon the concerned bailiff to file a fresh affidavit, relying on the same documents that were disapproved by this Court when the order dated 3rd February 2022 was passed.”

The Deputy Sheriff was directed to inquire why procedural rules and the Bailiffs’ Manual had not been followed and to submit an explanation from the bailiff concerned.

Key Observations on the Role of Bailiffs

Justice Godse reproduced the introductory paragraph of the Bailiffs’ Manual, which describes bailiffs as the hand through which justice is delivered, and warned that mechanical filing of service affidavits undermines the administration of justice:

> “The bailiff is under an obligation to verify that the same postal packet containing the writ of summons is received by the addressee… Courts rely on the bailiff’s statement at an important stage of the suit to determine whether the suit can proceed ex-parte or without a written statement.”

Final Directions and Broader Implications

The interim application was allowed. Defendants 2, 3 and 4 were granted four weeks to file their written statement. The plaintiff was directed to pay ₹50,000 as costs, the Deputy Sheriff was ordered to submit a compliance report, and the suit was listed for further directions on 9 June 2026.

The decision reaffirms that in the absence of proper service or waiver, the clock under Order VIII Rule 1 CPC does not begin to run. It also signals that courts will no longer tolerate casual reliance on defective service documents merely to push suits forward at the cost of defendants’ fundamental right to defend.