Entering appearance in interlocutory applications constitutes sufficient notice, negating claims of non-service of summons in summary suits.

ORDER :

This civil revision petition challenges the order passed by the learned XXII Additional City Civil Judge, Chennai, in I.A.No.3 of 2024 in O.S.No.5988 of 2023 dated 10.06.2024.

2.For the sake of convenience, the parties shall be referred to as plaintiff and defendant.

3.The civil revision petitioner is the defendant in the suit.

4.O.S.No.5988 of 2023 is a suit for recovery of money. The plaintiff is a practising Lawyer enrolled with the Bar Council of Tamil Nadu and Puducherry. She had been engaged by the defendant for performance of professional services. Work orders had been issued by the defendant to the plaintiff. It related to certain arbitration proceedings wherein the defendant was one of the parties to the proceedings.

5.Towards her professional services already rendered, the plaintiff had raised invoices on the defendant. The defendant defaulted in payment of the same. When the plaintiff called upon the defendant to settle the dues, the defendant gave an assurance that it will do so. Part payments were made thereafter. Full settlement was not arrived at. The plaintiff submitted a final invoice on 04.10.2021. She also sent reminders subsequently. Apart from making part payment of Rs.4,61,525/-, substantial payments were not made.

6.Being left with no other option, the plaintiff served a demand notice on 16.05.2023. Yet again on 14.07.2023, she issued a lawyer's notice to the defendant. As the outstanding amount towards the work orders remained unpaid, the suit was presented for recovery of a sum of Rs.82,81,446/- together with interest at the rate of 12% per annum from the date of the plaint till the date of realization. The suit was presented as an Under Chapter suit. The plaintiff pleaded that as the suit is based on invoices, which are written contracts, the suit would be covered in terms of Order XXXVII Rule 1(2)(b)(i) of the Civil Procedure Code.

7.The suit was presented on 25.09.2023. It was returned and finally numbered on 07.10.2023. The learned XXII Additional City Civil Judge, Chennai, ordered notice to the defendant. It is not in dispute that the suit summons under Order XXXVII Rule 3 was not served on the defendant. Private notice was ordered by the Court on 10.10.2023. Private notice had been taken by the counsel for the plaintiff on 11.10.2023. Service through e- mail had also been taken on the defendant on 11.10.2023.

8.Along with the suit, an application in I.A.No2 of 2023 was filed seeking prohibitory order restraining the second respondent therein from releasing any amount less than the suit value to the first defendant / first respondent therein. Notice was ordered in this application also. Affidavit of service was filed in Court on 13.10.2023. The counsel for the defendant filed a vakalatnama in the suit on 13.10.2023. Soon thereafter, the counsel had filed a notice of appearance on 27.11.2023 in the suit. It was received by the plaintiff. An endorsement was made on the notice stating that the notice of appearance is defective as the address for service had not been mentioned therein. However, even before that the learned counsel for the defendant had received from the learned counsel for the plaintiff a copy of the plaint along with all the plaint documents on 17.10.2023.

9.Subsequently, two memos were filed by the counsel for the defendant, on 02.12.2023. One of the memos stated, as there is no compliance with the terms of Form No.4 of Appendix B of the Civil Procedure Code read with Order XXXVII Rule 2(2) of the Civil Procedure Code, the suit should be converted to an ordinary suit.

10.The second memo was presented by the defendant stating that as it is a commercial suit within the meaning of Commercial Courts Act, 2015, the suit has to be transferred to the Commercial Court on grounds of jurisdiction.

11.The learned Trial Judge, was of the view that substantial orders, cannot be passed in a memo and therefore, called upon the defendant to withdraw the memos and file applications for the same relief.