Failure to enter appearance in a Commercial Suit after proper summons renders allegations admitted, entitling plaintiff to a decree without need for fresh service.

JUDGMENT

[VIA VIDEO CONFERENCING]

Amit Bansal, J. (Oral)

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 Jud