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2026 Supreme(Online)(Bom) 3687

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 1862 OF 2026
IN
COMMERCIAL SUIT NO. 6 OF 2018

1. Bina Ramnik Chawda
2. Khushali Ramnik Chawda
Both having address at
B/204, Kashi Bhuvan
Dixit Road, Vile Parle (East)
Mumbai 400 057
3. Shastriji Realtors Pvt. Ltd.
A company registered under the
Companies Act, 1956 having its
registered office at B/204, Kashi
Bhuvan, Dixit Road, Vile Parle (East)
Mumbai 400 057 ... Applicants
In the matter between
Cherag Balsara
An adult Indian Inhabitant
Resident of : 226, Tardeo Road
Mumbai 400 007 ... Plaintiff
Vs.
1. Bina Ramnik Chawda
2. Khushali Ramnik Chawda
Both having address at
B/204, Kashi Bhuvan
Dixit Road, Vile Parle (East)
Mumbai 400 057
3. Shastriji Realtors Pvt. Ltd.
A company registered under the
Companies Act, 1956 having its
registered office at B/204, Kashi
Bhuvan, Dixit Road, Vile Parle (East)
Mumbai 400 057 ... Defendants

Mr. Akshay Patil a/w. Ms. Kinjal Kakkad i/b. Mr. Jayesh R. Vyas for the Plaintiff.
Ms. Rama Subramanian for all the Defendants.

CORAM : GAURI GODSE, J.

DATE : 7th APRIL 2026

Advocates:
For the Appellants/Petitioners: Akshay Patil, Kinjal Kakkad, Jayesh R. Vyas
For the Respondents: Rama Subramanian

Service of summons is a mandatory procedural requirement; without proof of valid service or waiver, the temporal restriction for filing a written statement does not accrue. Non-compliance with service procedural rules, especially when relying on discredited documentation, invalidates claims of 'deemed service' and prevents forfeiture of the right to defend.

Headnote:(A) Code of Civil Procedure, 1908 - Order V, Rule 9(5) - Order VIII, Rule 1 - High Court Original Side Rules - Rule 76 - Rule 448(3) - Bailiffs’ Manual - Service of summons - Validity of - Mandatory procedural requirement - Essential for commencement of limitation period - Responsibility of court officers to perform duties with diligence and accuracy in accordance with established rules.

(B) Service of process - Duty of court officers - Requirement of adherence to manuals - Mechanically filed affidavits containing previously rejected or unsubstantiated documentation cannot establish service - Inquiry required by court where valid service is contested.

(C) Right to defend - Forfeiture of - Contingent upon valid service - Time limit for filing written statement does not commence in the absence of valid service or waiver of service by the defendant. (Paras 10, 19, 20, 21, 23, 25, 26).

Facts of the case:
The controversy involved the alleged service of a writ of summons in a commercial suit. Despite multiple court directives requiring service and valid proof, the plaintiff failed to provide legally sufficient evidence. The official responsible for service repeatedly utilized inconsistent and previously disbelieved documentation, failing to follow mandatory procedural manuals in effect for the jurisdiction. The defendants contended that the summons was never received, opposing the forfeiture of their right to file a defense.

Findings of Court:
The court determined that there was no valid service of the writ of summons. The supporting documents were either illegible, contextually contradictory, or failed to identify the recipient with sufficient clarity. Given that valid service or a waiver had not been established, the court held that the time limit for filing a written statement had not yet begun to operate.

Issues: The main issues were whether the writ of summons was validly served upon the defendants, and whether the defendants’ right to file a written statement was forfeited due to the expiry of the stipulated period.

Ratio Decidendi: Service of process is a fundamental procedural entitlement. Failure to adhere to the procedural mandates for service and documentation renders the evidence of service invalid. Consequently, in the absence of proper proof of service or waiver, the statutory period for filing a written statement does not commence, thereby preserving the defendant's right to defend the suit.

Result: Interim application allowed; defendants granted leave to file a written statement within four weeks.

ORDER :

1. This interim application is filed by the defendants seeking leave to treat the affidavit in reply to the notice of motion as their written statement and grant leave to file an additional written statement in view of subsequent developments. According to the defendants, the writ of summons was not served.

2. The plaintiff relies on the bailiff's service affidavit to contend that service of the writ of summons was completed in 2019, and therefore, the defendants’ right to defend is forfeited. Hence, the plaintiff opposes the defendants’ prayer to treat the affidavit-in-reply as their written statement.

3. To examine the rival contentions, it is necessary to refer to the earlier orders passed in this suit. On 3rd February 2022, the following order was passed :

“1. Having found that the affidavit-of-service dated 26th March 2019 filed in the registry on 27th March 2019 being insufficient to prove service upon the defendants separately, Mr. Patil seeks some time to put his house in order. Accordingly, if writ of summons is served on each of the defendants, the affidavit-of-service shall be filed not later than 14th March 2022.

2. List the Suit on 17th March 2022.”

4. Thereafter, on 31st March 2022, the learned counsel for the plaintiff had requested further time to comply with the directions in the order dated 3rd February 2022. Accordingly, the suit was adjourned to 21st April 2022. On 21st April 2022, the following order was passed :

“Despite order dated 3rd February 2022 Writ of Summons is not served. There is no proof of service of writ of summons. Liberty to apply after affidavit of service is filed.”

5. Despite these directions, no steps have been taken on behalf of the plaintiff to effect service of the writ of summons on the defendants as prescribed under the CPC, read with the relevant rules of the Bombay High Court (Original Side) Rules 1980 (“said OS Rules”).

6. The suit is filed against four defendants. Defendant no. 1 expired after the aforesaid orders were passed, and his name has been deleted as per the order dated 13th January 2022, and an amendment is carried out pursuant to the time to carry out the amendment extended vide Order dated 8th December 2025. On 13th January 2022, when the Notice of Motion No. 1637 of 2018 was decided, it is recorded that the affidavit of service dated 26th March 2019 records that service upon defendant no. 4 is complete, and an acknowledgement of the postal department is also annexed, and the defendants have entered an appearance through their advocates on 6th June 2019. In the same order, a statement on behalf of defendant nos. 2 to 4 was recorded that the advocate needs time to take instructions as to whether the affidavit-in-reply can be treated as a written statement on behalf of the defendant nos. 2 to 4. Accordingly, the notice of motion was disposed of, and the name of defendant no. 1 was permitted to be struck out.

7. The defendants have accordingly filed this Interim Application (L) No. 1862 of 2026 seeking leave to treat the affidavit in reply to the notice of motion as their written statement. This application is opposed on behalf of the plaintiff on the ground that the writ of summons was duly served, and thus, there is a delay in filing the said application. Hence, the defendants cannot be permitted at this stage to treat their affidavit in reply as a written statement.

8. On 10th February 2026, when this Interim Application was called out for hearing, the learned counsel for the defendants raised a grievance that the writ of summons had never been served upon the defendants. Hence, this Court, by Order dated 10th February 2026, granted time to the plaintiff to verify the record and file a fresh service affidavit in compliance with the directions issued vide Order dated 3rd February 2022. Thereafter, the time for compliance was extended. On 24th March 2026, a service affidavit dated 24th March 2026 was tendered. The fresh affidavit contained the same annexures t

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2026 Supreme(Online)(Bom) 3687

Cases Referred (1)