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.

JUDGMENT

C. Hari Shankar, J. (Oral)

1. This petition under Article 227 of the Constitution of India assails orders dated 29th December, 2021 and 7th May, 2022, passed by the learned District Judge (Commercial Court) (hereinafter "the learned Commercial Court") in CS(Comm) 113/2021 (Flick Studios Pvt. Ltd. v. Gravity Entertainment Pvt. Ltd.), a summary suit preferred by the petitioner against the respondent under Order XXXVII of the Code of Civil Procedure, 1908 (CPC).

2. By order dated 28th July, 2021, the learned Commercial Court directed issuance of fresh summons to the defendant under Order XXXVII Rule 2(2) of the CPC on filing of process fee by the petitioner. Instead of filing process fee so that fresh summons could be issued, the petitioner preferred to file a review application, seeking review of the said order. The said review application stands dismissed by the learned Commercial Court vide order dated 7th May, 2022. Both these orders form the subject matter of challenge in this petition, preferred under Article 227 of the Constitution of India.

3. Given the nature of the controversy, it is not necessary to enter into the intricacies of the disputes between the parties. Suffice it to state that, consequent on the filing of CS (Comm) 113/2021 by the petitioner under Order XXXVII of the CPC, the learned Commercial Court converted the suit into an ordinary suit vide order dated 12th October 2021, holding that a summary suit would not lie on the basis of unsigned invoices. This order was carried, by the petitioner, before this Court by way of CM (M) 1185/2021 (Flick Studios Pvt. Ltd. v. Gravity Entertainment Pvt. Ltd.). The said petition was disposed of by a coordinate Single Bench of this Court by order dated 20th December 2021, holding that a summary suit was maintainable on the basis of unsigned invoices. The said order also records thus, in para 8, on which the petitioner seeks to capitalize:

"8. In the present case, the additional factor in favour of the petitioner would be that summons were already issued on 28th July, 2021 on the basis of suit under Order XXXVII of the CPC and despite service, the respondent has failed to enter appearance within the statutory period of ten days."

4. This Court, therefore, set aside the order dated 12th October, 2021 and directed the learned Commercial Court to treat the petitioner's suit as a summary suit and decide the suit accordingly.

5. The suit was, therefore, again registered as a summary suit under Order XXXVII of the CPC, and vide the following order dated 29th December, 2021, fresh summons were directed to be issued to the respondent under Order XXXVII Rule 2 of the CPC, returnable on 18th April, 2022:

"OMP (I) (Comm) No. 113/21

Flick Studios Pvt. Ltd. Vs. Gravity Entertainment

29.12.2021

Matter has been taken up today pursuant to order No. Judl.II/F.31/South/Saket/2021/23155-23229 dated 18.12.2021 issued by the office of Ld. Principal District & Sessions Judge (South), Saket Courts, New Delhi.

Present: None.

File has been taken up today on receipt of the soft copy of the order dated 20.12.2021 passed by the Hon'ble Delhi High Court in CM(M) No. 1185/2021 whereby the order dated 12.10.2021 has been set aside and the present suit is directed to be treated as a suit U/o 37 CPC. Accordingly, the present suit be registered as a summary suit U/o 37 CPC.

The next date given in the matter i.e. 14.02.2022 is hereby cancelled and let the summons of the suit be now issued to the defendant as per Order 37 Rule 2(2) of CPC i.e. in Form No.4 Appendix B on filing of PF and RC, within seven days, returnable for 18.04.2022.

(Prem Kumar Barthwal)

Vacation Judge/District Judge (Comm)-01

(South)/Saket Courts,

New Delhi/29.12.2021/ak"

6. The petitioner did not file process fee, as directed by the order dated 29th December 2021 so that fresh summons could be issued to the respondent. Instead, the petitioner filed an application seeking review of the order dated 29th December 2021