Transfer of suits from ordinary to commercial divisions does not necessitate formal service of summons if the defendant has appeared and engaged counsel.

ORDER :

ABHAY AHUJA, J.

1. This Interim Application has been filed by the Defendant No.1 seeking the following reliefs :

“(a) That the above Commercial Suit No.88 of 2015 (Regular Suit No.1148 of 2015 bearing (L) No.852 of 2015) be dismissed as the Plaintiffs have not taken steps to issue and serve Writ of Summons on the Applicant/Org. Defendant No.1 as required by the Code of Civil Procedure, 1908 and/or the provisions of COMMERCIAL COURTS ACT , 2015.

(b) That it be declared that orders dated 21^st October 2016 and 13^th December 2016 passed by the Prothonotary and Senior Master, High Court, Bombay are non-est, nullity and are liable to be set aside and accordingly be set aside.

(c) That the pending the hearing and final disposal of the present Interim Application, the ad- interim order dated 1^st September 2015 passed by this Hon’ble Court (Exhibit-A), be vacated and/or recalled.”

2. The facts relevant for deciding this Application are set out hereunder :

2.1 On 13^th July 2007, a judgment was passed by this Court in the case of Tardeo Properties Pvt. Ltd. vs. Bank of Baroda, [2007 SCC OnLine Bom 614], holding that entering appearance at the interlocutory stage/filing of Vakalatnama will not do away with the requirement of serving a writ of summons.

2.2 On 29^th September 2008, a Notification was issued by this 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.”.

2.3 On 21^st September 2011, a judgment was passed by this Court, in the case of Meena Ramesh Lulla and Others vs. Omprakash A. Alreja and Another, [2011 SCC OnLine Bom 2147], 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.

2.4 On 19^th August 2015, the present Suit No.1148 of 2015 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 (the “ COMMERCIAL COURTS ACT ”).

2.5 On 20^th August 2015, copies of the plaint along with exhibits and notice of motion were served upon the Defendant No.1. It is an admitted position that the Defendant No.1 was not only served with a copy of the pleadings, but also notified of the date of hearing viz. 24^th August 2015.

2.6 On 24^th August 2015, Affidavit of service of Mr. Maruti Gorakh Kamble, Clerk of Plaintiffs’ Attorney was filed in this Court. On the same day, at the hearing before this Court, Defendant No.1 had engaged lawyers, i.e. India Law Alliance and was represented by a Senior Advocate.

2.7 On 28^th August 2015 as well the same law firm and the same Senior Advocate represented the Defendant No.1.

2.8 Thereafter, on 1^st September 2015, the consent order came to be passed, when also the same Senior Advocate and the same law firm represented the Defendant No.1. By the said consent order, Defendant No.2 deposited Rs.12,50,00,000/- in this Court with liberty to the Plaintiffs to withdraw the same