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IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Pandm Movies Private Limited - Appellant
Versus
Sapna @ Sapna Choudhary - Respondent
Civil Miscellaneous (Main) No. 1007 of 2021
Decided On : 12-11-2021
Order XXXVII of the CPC - Commercial Suit - 2(1)(c) of the Commercial Courts Act, 2015 - Order XXXVII Rule 2(3) of CPC
Fact of the Case:
The petition arises from a suit filed under Order XXXVII of the CPC and as a Commercial Suit in terms of the Commercial Courts Act, 2015. The defendant was duly served with summons, failed to appear, and the plaintiff sought a decree. The Commercial Court initially transferred the suit to a Court of ordinary civil jurisdiction, and subsequent orders required fresh summons to the defendant, which the petitioner contested.
Finding of the Court:
The court found that the suit, although initially categorized as a Commercial Suit, was still governed by the provisions of Order XXXVII of the CPC. The defendant's failure to appear entitled the plaintiff to a decree, and there was no requirement for fresh summons to be issued to the defendant.
Issues: The main issue was whether the change from Commercial to Ordinary Suit necessitated fresh summons to the defendant, despite the defendant already being duly served in the prescribed format of an Order XXXVII Summary Suit.
Ratio Decidendi: The court held that the prescribed format of summons for a suit filed under Order XXXVII remains the same, whether the suit is filed as a Commercial Suit or an Ordinary Suit. The defendant's failure to enter appearance within the prescribed time entitled the plaintiff to a decree, and there was no need for fresh summons to be issued.
Final Decision: The impugned order requiring fresh service of summons to the respondent was set aside, and the court directed to proceed in accordance with the provisions of Order XXXVII of the CPC without issuance of fresh summons to the respondent.
JUDGMENT
Amit Bansal, J. - CMs No. 40105/2021 & 40106/2021 (both for exemption)
1. Allowed, subject to all just exceptions.
2. The applications are disposed of.
CM(M) 1007/2021 & CM No. 40104/2021 (for stay)
3. The present petition under Article 227 of the Constitution of India impugns the (i) order dated 27th March, 2021 passed by the District Judge (Commercial Court)-03 (Central), Tis Hazari Courts, Delhi; and, (ii) orders dated 3rd August, 2021, 7th September, 2021, and 4th October, 2021 passed by the ADJ-3 (Central), Tis Hazari Courts, Delhi in CS (Comm) No.102/2021.
4. It is submitted on behalf of the counsel for the petitioner that the suit from which the present petition arises was filed under Order XXXVII of the CPC and as a Commercial Suit in terms of the Commercial Courts Act, 2015. Summons were issued in the suit in Form No.4 to Appendix B of the Code of Civil Procedure, 1908 (CPC), as prescribed for suits under Order XXXVII of the CPC, to be served at the addresses of the defendant in Delhi and Gurgaon.
5. It was noted by the Commercial Court in the order dated 4th March, 2021 that the defendant has been duly served in the matter, yet the defendant has failed to enter appearance in terms of Order XXXVII of the CPC and the matter was posted for judgment on 27th March, 2021. The order of the Commercial Court dated 4th March 2021 is set out below:
"Perusal of record shows that the matter is pending for service of summons of the suit in Form No. 4 in Appendix B of the Code of Civil Procedure, 1908 upon the Defendant. Summons of the suit issued to the Defendant through ordinary process at her Delhi address received back with the refusal report as reflected in the report of the Process Server dated 04.02.2021. Summons of the suit issued to the Defendant through Speed Post as well as through Authorized Courier are reported to be served on 04.02.2021 through Speed Post declaring 'Item Delivered Confirmed' and on 03.02.2021 at Delhi address of the Defendant through courier and on the Gurugram address of the Defendant through courier on 04.02.2021 with the endorsement "Successfully Delivered".
Counsel for the Plaintiff has also placed the Speed Post tracking report with receipts and Courier receipts on the record.
I have carefully gone through the said reports and receipts and I am satisfied that the Defendant has been duly served with the summons of the suit on 03.02.2021 and on 04.02.2021 through the modes as mentioned here-in above but nobody has entered appearance on behalf of the Defendant within the statutory period of 10 days of such service of the summons of the suit upon the Defendant.
In the circumstances, as per the provisions of Order XXXVII CPC in default of her entering the appearance the allegations in the plaint shall be deemed to be admitted and the Plaintiff shall be entitled to a decree.
It is to be noted that the factual matrix of the suit and the documents annexed thereto is voluminous and requires substantial time for consideration. In the meantime, the Counsel for the Plaintiff to file the brief written submissions.
Put up on 27.03.2021 for judgment."
6. Vide order dated 27th March, 2021, the Commercial Court took the view that the aforesaid suit is not covered in the definition of Commercial Dispute in terms of Section 2(1)(c) of the Commercial Courts Act, 2015 and therefore, should not be treated as a Commercial Suit. Accordingly, the suit was transferred to the Court of Principal District and Sessions Judge, Tis Hazari Courts, Delhi, for assignment to a Court of competent jurisdiction. Thereafter, the matter was listed before the Court of Additional District Judge-03 (Central) Tis Hazari Courts, Delhi and vide order dated 3rd August, 2021, the matter was adjourned due to non-appearance of the defendant. On 7th September, 2021, the suit proceeded ex parte since the defendant did not appear and arguments of the petitioner/plaintiff were heard in part. Subsequently, the matter was listed on 4th October, 2021 for fu
The prescribed format of summons for a suit filed under Order XXXVII remains the same, whether the suit is filed as a Commercial Suit or an Ordinary Suit, and the defendant's failure to enter appeara....
Failure to enter appearance in a Commercial Suit after proper summons renders allegations admitted, entitling plaintiff to a decree without need for fresh service.
The Court affirmed the necessity of proper service of summons and held that the failure to demonstrate adequate service justified the trial court's decision to issue fresh summons.
Transfer of suits from ordinary to commercial divisions does not necessitate formal service of summons if the defendant has appeared and engaged counsel.
Entering appearance in interlocutory applications constitutes sufficient notice, negating claims of non-service of summons in summary suits.
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 ....
The principle of deemed service and the requirement for sufficient cause in delay condonation applications are crucial in determining the validity of service of summons and the acceptance of delay co....
Order V Rule 19 of CPC, mandates that before declaring fact that summons have been duly served, it was obligatory for this Court to examine Process Server, on oath, as requisite affidavit has not bee....
The main legal point established is that the requirement of law to serve the defendant with summons for judgment must be fulfilled, and hyper-technical objections devoid of merit will not affect the ....
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