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Slaps ₹50K Costs on Plaintiff Over Botched Summons Service in 8-Year-Old Commercial Suit
In a stern rebuke to procedural sloppiness, the has ruled that recycling rejected documents in a fresh service affidavit doesn't magically validate summons service. Justice Gauri Godse allowed defendants in a lingering commercial dispute to file their after years of plaintiff inaction, while imposing hefty costs and directing an inquiry into bailiff misconduct.
A Summons Saga: From Suit to Showdown
The dispute traces back to Commercial Suit No. 6 of , filed by plaintiff Cherag Balsara against Bina Ramnik Chawda, Khushali Ramnik Chawda, and Defendant No. 1 passed away post-filing, leading to their deletion in . The core issue? Whether was ever properly served, kicking off the timeline for defendants' response under —crucial in time-bound commercial suits.
Plaintiff claimed service via registered post in
, backed by a bailiff's affidavit. But defendants cried foul, insisting no summons reached them. Court orders from
flagged the
affidavit as
"insufficient to prove service upon the defendants separately,"
granting time for fresh proof. Despite adjournments through
and extensions into
, plaintiff failed to deliver, prompting defendants' Interim Application (L) No. 1862 of
for permission to treat their notice-of-motion reply as a
—or file a new one amid "subsequent developments."
Plaintiff's Postmark Ploy vs. Defendants' Delivery Denial
Plaintiff's counsel leaned on the proviso to and , arguing dispatch by registered post acknowledgment due (RPAD) sufficed as service. They tendered a , bailiff affidavit from Shivanand G. Pujari, echoing the version: packets dispatched to common addresses, journal entries logged, no returns undelivered. Tracking glitches? Blamed on old records. Citing Basant Singh vs. Roman Catholic Mission (2002) 7 SCC 531, they urged deeming service complete upon issuance.
Defendants countered that no originals—receipts, acknowledgments, or legible track reports—were produced. Annexures were blurry, mismatched (e.g., wrong defendant names, "Shastriji Construction" stamps signed "Aarti"), and identical to the court's earlier rejects. No personal service attempts, no compliance with Original Side (OS) Rules or Bailiffs’ Manual. They stressed consistent denials of receipt since and no waiver.
Court's Scalpel: Dissecting Affidavits, Manuals, and Lapses
Justice Godse meticulously tore apart the affidavits:
"None of the copies of the postal receipts annexed to the service affidavit is legible. The original receipts are not produced."
Acknowledgments mismatched entities; tracking reports lacked addressee links. Even the bailiff admitted errors like wrong packet labels. The
affidavit reused
annexures, defying
orders.
Invoking (allowing RPAD but mandating inquiry sans acknowledgment), (detailing returns, endorsements), and (timely affidavits), the court held no . Plaintiff's , letter demanding a "fresh" affidavit on old docs? "Shocking." No Basant Singh applicability without dispatch verification. Bailiffs, per the Manual's intro, must act with "diligence, honesty and assiduity"—a standard unmet here.
As media reports echoed,
"Fresh Service Affidavit Based On Earlier Rejected Documents Cannot Prove Summons Service,"
the court warned such tactics forfeit no defendant rights absent valid service.
Key Observations
"It is shocking that, despite the aforesaid orders, the learned advocate for the plaintiff issued a letter dated 23rd March , calling upon the concerned bailiff to file a fresh affidavit, relying on the same documents that were disapproved by this Court."
"Bailiffs have an important role to play in the administration of justice. It is, therefore, said that justice flows from the Judge’s pen, but it is the bailiff’s hand that delivers it."
"In view of the contents of the service affidavit dated 24th March ... none of the postal receipts, tracking report and acknowledgement... can be accepted as valid service upon the defendants."
"The conduct of the plaintiff... calls for imposing cost on the plaintiff."
Gavel Falls: Greenlit, Bailiff on Notice
Interim application allowed: Defendants Nos. 2, 3, and 4 get four weeks to file written statements. Deputy Sheriff to probe bailiff Shivanand G. Pujari within four weeks. Plaintiff pays ₹50,000 costs to defendants pronto. Suit relisted .
This ruling safeguards defendant rights in commercial suits, mandating rigorous service proof amid digital/postal shifts. Future plaintiffs beware: half-measures invite costs and delays; bailiffs, heed the Manual or face scrutiny. A win for procedural purity in Mumbai's bustling courts.
