Failure to serve summons does not automatically warrant dismissal if the defendant is aware of the suit.

1. This Interim Application seeks dismissal of the Commercial Summary Suit (CSS) for failure to take out and serve the Writ of Summons and Summons for Judgement.

2. The reason for seeking dismissal of the suit is that though the SUMEDH NAMDEO SONAWANE CSS was filed on 28th September 2021, the Plaintiff failed to Digitally signed by SUMEDH NAMDEO 1/10 SONAWANE Sumedh Date: 2023.09.01 comply with the mandatory provisions of Commercial Courts Act, 2016 (‘CCA’) and Code of Civil Procedure, 1908 , (‘CPC’) Bombay High Court (Original Side) Rules and Practice Notes issued by the Prothonotary and Senior Master, High Court Bombay and failed to serve the summons for judgement within the stipulated period of six months’ time.

3. Mr. Surve, learned counsel for the Applicant contended that the Defendant received intimation with regard to the matter for the first time only on 7th June 2022 i.e. after a period of 8 months from the date of filing of the suit on 28th September 2021. It is submitted that, as per the Plaintiff’s Advocate’s email, the Writ of Summons that was attempted to be served on the Applicant’s registered address was returned by the Post Office with a remark “left” which establishes that the Applicant was not served. He submitted that the Plaintiff was always aware about the Defendant’s Navi Mumbai address as well as the email address and chose not to serve the Defendant and hence the failure to serve is evident.

4. The Learned Counsel submitted that as per Order 9 Rule 5 of the CPC when summons returned unserved and the Plaintiff fails to apply for fresh summons within 7 days, the Court shall make an order dismissing the suit. It is submitted that the Plaintiff has failed to seek leave of this Court to issue fresh Writ of Summons and consequently the suit deserves to be dismissed. It is submitted that the Rules 87 and 227 of the Bombay High Court (Original Side) Rules ought to be followed and the Plaintiff who seeks to pursue the summary procedure must necessarily suffer the consequences of his failure to do certain acts within specified time mentioned. It is submitted that in view of the aforestated failure on the part of the Plaintiff the suit ought to be dismissed with compensatory costs.

5. In support of his contention Mr. Surve relied upon the following judgements:

1. Sky Shipping and Anr. vs Vodafone India Limited , 2016 SCC OnLine Bom 3580 (particularly paragraphs 2, 8 & 12 – 18)

2. Bankay Bihari G Agrawal vs M/s Bhagwanji Meghji & Ors, 2001 (1) MH.L.J. (particularly paragraphs 10-13, 43 & 54)

6. Per Contra, Mr. Patil learned counsel for the Plaintiff submitted that the Defendant has been served with the Summons for Judgement in a timely manner. It is submitted that the CSS was filed on 28th September 2021 and the six months period would end on 28th March 2022. It is submitted that the limitation period to serve the Writ of Summons stood suspended from 3rd October 2021 till 28th February 2022 in view of the judgement dated 10th January 2022 extending the period of limitation on account of Covid pandemic and consequently the Plaintiff had a period of 176 days from 1st March 2022 i.e. upto 23rd August 2022. It is submitted that an attempt was made to serve the Writ of Summons on the Defendant’s registered address available on the official website of MCA which was also the last known address to the Plaintiff by registered Post A.D. which was returned by the post office with a remark ‘left’ on 13th January 2022. It is submitted that the same was within the six-month period from the date of