JUDGMENT :

P.D. AUDIKESAVALU, J.

Prayer: Appeal under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent to set aside the order dated 25.02.2020 made in C.S. No. 334 of 2014 and to allow the above appeal.

1. This intra court appeal invoking Clause 15 of the Letters Patent has been preferred by the Seventh and Eighth Defendants in C.S. No. 334 of 2014 on the file of the Original Side of the Court aggrieved by the order dated 25.02.2020 passed in that suit. The parties are hereinafter referred to as per their description in that suit for the sake of convenience.

2. The Plaintiff, which is an non-banking financial company, had laid the suit for recovery of a sum of Rs. 4,94,64,951/- from the Defendants with discount charges at 17.25% per annum compounded with monthly rests from the date of plaint till its realization. The summons issued through Court to the Seventh and Eighth Defendants had been returned un-served on 13.06.2014 with the endorsement of bailiff as went to abroad. The Plaintiff thereafter sent private summons by registered post to the Seventh and Eighth Defendants which were returned with the endorsement as ‘unclaimed’ as per the affidavits of service dated 31.10.2014 and 04.10.2016 filed in that regard. An application in A. No. 6920 of 2016 was thereafter made by the Plaintiff for substituted service which was ordered by the Learned Master on 09.01.2017 and paper publication was made on 20.01.2017 in the Tamil Daily ‘Malai Murasu’ which was recorded in the order dated 13.02.2017. It is noticed from the records that the Seventh and Eighth Defendants had entered appearance in the suit through their Counsel, who has filed vakalat on 26.07.2019. After the filing of the suit, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as ‘the Commercial Courts Act’ for short) came into force and by notification, the Commercial Division has been constituted in this Court with effect from 29.11.2017. In furtherance thereto, the present suit was classified as ‘commercial dispute’ and in the proceedings dated 25.02.2020, it was observed that whether it was a regular suit or a commercial dispute, the time prescribed under the statute to file written statement had expired long back. The Trial Court took notice of the fact that the recording of evidence of the Plaintiff Witness 1 (PW-1) had commenced before the Learned Additional Master-I and his examination-in-chief was over and the same was pending for cross-examination and further examination of Plaintiff Witnesses and directions were issued for examining them on 11.03.2020 and completion of the cross-examination on or before 25.03.2020 and to list the matter before the Court on 30.03.2020.

3. The Seventh and Eighth Defendants claim to have applied for a certified copy of the said order on 25.02.2020 vide C.A. No. 2476 of 2020, but the same had not been made ready by the Registry. In such circumstances, the Seventh and Eighth Defendants presented this appeal on 22.01.2021 against the order dated 25.02.2020 passed in that suit along with an application in C.M.P. No. 7430 of 2021 to dispense with the production of the original certified copy by accepting its copy which had been downloaded from the official website of this Court which has been ordered on 29.04.2021.

4. The grievance sought to be ventilated by the Seventh and Eighth Defendants in this appeal is that the Trial Court ought not to have held that the filing of their Written Statement had been forfeited in the absence of proper service of summons on them in the suit which had been presented on 28.04.2014 prior to the commencement of the Commercial Courts Act. The Plaintiff resists the appeal by pointing out that inasmuch as the Learned Master on the Original Side of this Court has recorded the completion of service of summons on the Seventh and Eighth Defendants on 13.02.2017, it is not open to them to assert that the t