The appearance of an Advocate and filing of a Vakalatnama by him could not dispense with the requirement of service of summons. The time to file written statement commences only after service of the writ of summons.

JUDGMENT:

1. By the present Writ Petition, Petitioner has prayed for the following two reliefs:-

“a. That this Hon’ble Court be pleased to call for the records and proceedings of Notice of Motion No.1707 of 2019 and Application at Exhibit “4” in Commercial Suit No. 3 of 2019 pending before the Hon’ble City Civil Court at Mumbai and on appreciating the merit of the same be pleased to quash and set aside the impugned Order dated 08/04/2021 passed in Application at Exhibit “4”, on such terms and conditions as this Hon’ble Court may deem fit and proper;

d. Direction to the Respondent for return of original Performance Bank Guarantee No. 0429818BG0000061 dated 27/04/2018 to Petitioner for submitting the same to the issuing Bank for cancellation/release of the same.”

2. In so far as prayer clause ‘d’ is concerned, both parties are ad idem that the Performance Bank Guarantee has expired. Petitioner fairly does not press for the same. Petitioner is the Plaintiff and Respondent is the Defendant in Commercial Suit No.3 of 2019 filed before the Bombay City Civil Court at Mumbai (for short “the said suit”).

3. The present Petition takes exception to the common order dated 08.04.2021 passed in Notice of Motion No.1707 of 2019 and Application (Exhibit 4) in Commercial Suit No.3 of 2019, inter alia, permitting the Defendant to submit its written statement and marking the written statement as Exhibit “7”. According to Plaintiff, the written statement cannot be taken on record as it is filed beyond the prescribed period of limitation. At the heart of the controversy is the question 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. Defendant however has entered appearance, but denied receiving copy of the plaint and Notice of Motion.

4. Before I advert to the submissions, it would be pertinent to refer to such relevant facts only as are necessary to decide the issue:-

4.1. Plaintiff is a Private Public Company (as described) duly incorporated under the Companies Act, 1956 (now Companies Act, 2013) (for short “Companies Act”) and engaged in the business of manufacturing/trading of auto rubber tubes etc.

4.2. Defendant is a leading state-owned Passenger Road Transport Organization in Maharashtra having a fleet of over 18,500 buses.

4.3. Defendant floated an e-open tender for purchasing new Butyl Rubber Inner Tubes for Radial Tyre Size 9.00 x 20 Radial Tubes for its buses.

4.4. Plaintiff was one of the successful bidder alongwith another entity and was awarded a Rate Contract dated 17.05.2018 for supply of tubes. Plaintiff furnished security amount of Rs.30,42,000/- in the form of Performance Bank Guarantee dated 27.04.2018 to Defendant. It was also awarded additional business for supply of Radial Tubes @ Rs.602/- subsequently for different dimensions. According to Plaintiff, 14 bus depots accepted the Radial Tubes supplied by Petitioner without any complaint. However, 16 bus depots allegedly complained about defects in the tubes. Correspondence ensued between the parties in respect of pricing, defect liability clause and release of payments etc.

5. Being aggrieved, Plaintiff filed Commercial Suit No.3 of 2019 for a claim of Rs.73,51,817/- and Notice of Motion No.1707 of 2019 seeking urgent ad-interim / interim relief on 30.03.2019. On 24.04.2019, both parties alongwith their Advocates appeared before the learned Trial Court and opportunity was given to Respondent to file Reply to the Notice of Motion and written statement in the suit.

6. For the purpose of the present controversy, roznama of the following 8 dates and appearances before the Trial Court is relevant and is reproduced below:-