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Judgment
Krishna Rao, J
The defendant has filed the present application for recalling/ modification of the order passed by this Court dated 17th August, 2023 wherein this Court dispensed with for lodging of fresh Writ of Summons as the Counsel for the defendant has accepted the notice of amended plaint.
The main contentions raised by the defendant in the present application is that the Counsel for the defendant has accepted the amended plaint and documents and this Court dispense with for lodging of Writ of Summons but on scrutiny of the amended plaint, the defendant came to know that the plaintiff by way of amendment has only changed the name of the defendant company but the plaintiff has not amended the address of the defendant company in the cause tittle even the plaintiff had the knowledge of the correct address of the defendant.
Mr. Suman Dutt, Learned Senior Advocate representing for the defendant submits that at no point of time, the defendant had carried its business or having its registered office at Shakespeare Court, Flat No. 5C, 21A, Shakespeare Sarani, Kolkata- 700017. He submits that the defendant is having its registered office at Raheja Point, Wing- B, 7th Floor, Nehru R, Near Shamrao Vithal Bank, Vakola, Santacruz (East) Mumbai- 400055 which is outside the jurisdiction of this Court.
Mr. Dutt submits that in paragraph 79 of the plaint, the plaintiff has stated that the letter dated 17th January, 2020 was not received by the defendant at the said address. The plaintiff has also filed an application being G.A. No. 2 of 2023 for amendment of name and address of the defendant in the cause title and other places in the plaint and this Court by an order dated 18th May, 2023, allowed the amendment application but the plaintiff has not amended the address of the defendant in the cause title.
Mr. Dutt submits that Writ of Summons, has to be served in the manner as prescribed under law. Non-compliance of service of writ of summons is a ground for rejection of plaint under Order VII, Rule 11 (f) of the Code of Civil Procedure, 1908.
Mr. Dutt submits that the plaintiff has failed to take out fresh summons with the correct address with the particulars of the defendant. He submits that the plaintiff was required to be served with the amended plaint on the defendant by taking out a fresh writ of summons but the plaintiff failed to do so.
Mr. Dutt submits that the plaintiff has suppressed the fact that the defendant does not carry on business within the jurisdiction of this Court, at the address given in the plaint, inspite of having knowledge that the Writ of Summons was returned unserved.
Mr. Dutt submits that on 17th August, 2023, the copy of the amended plaint was handed over to the Learned Counsel for the defendant in Court and the Learned Advocate for the defendant did not have the opportunity to take instructions from the defendant as to the amended plaint. As such, there cannot be said to be a “waiver” of a known right in the present case.
Mr. Dutt submits that it is a mandatory provision of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015 that the summons in a suit has to be served on the defendant. He submits that in the absence of issuance of valid summons, it cannot be assumed that the defendant had the knowledge of the obligation to file written statement within a period of 30 days from the date of service of summons. In support of his submissions, Mr. Dutt relied upon the judgment in the case of Machine Tools Aids India Vs. GNC Infra LLP and Another reported in 2023 SCC OnLine Del 358.
Mr. Dutt submits that service of Writ of Summons in a suit in order to constitute a starting point for the time available for filing written statement, has to be meaningful services. He submits that though advocate for the defendant has accepted the amended plaint but after going through the same, it was found that the plaintiff has not served the corrected copy of the plaint as the address of the defendant in the cause title of the plaint is not correct. In support of his submission, he has relied upon the judgment of unreported case of Mr. Rajesh Kathpal Vs. M/s. Shubh Steel of the Hon’ble Delhi High Court passed in CM(M) 991/2022 and CM APPL. 41285/ 2022 dated 12th October, 2022.
Mr. Arjun Samanta, Learned Advocate representing the plaintiff submits that from the notice issued by the Mediation Centre dated 7th September, 2022, the defendant had the knowledge that in the cause title of the plaint, the Kolkata address of the defendant is mentioned and the defendant has never objected for the said address.
Mr. Samanta submits that on 30th March, 2023, the Learned Advocate-on-record of the defendant filed Vakalatnama and Affidavit of Competency along with the cause title of the suit wherein Kolkata address of the defendant is mentioned and the defendant has not objected with respect to the address of the defendant.
Mr. Samanta submits that by an order dated 27th February, 2023, this Court directed the plaintiff to serve the copy of the plaint, documents and connected applications to the advocate-on-record of the defendant within a week and at that point of time also the defendant has not raised any objection that the address of the defendant in the cause title of the plaint is not correct.
Mr. Samanta submits that on 3rd March, 2023, Sinha and Co. Advocates issued a letter to the advocate on record of the plaintiff intimating that the name of the name of the defendant has been changed from ‘Crest Logistics and Engineers Private Limited’ to ‘ CLE Private Limited’ on and from 9th December, 2019 and in the said communication, the defendant has not informed that the address of the defendant is not correct.
He submits that on receipt of information, the plaintiff has taken out Masters Summons for amendment and the said Masters summons was served upon the learned Advocate on record and on receipt of the said master summons also, the defendant has not raised any objection with regard to the address of the defendant and at the time of hearing, the counsel for the defendant submitted that the amendment sought for by the plaintiff is formal in nature and this Court allowed the amendment application by an order dated 18th May, 2023.
Mr. Samanta submits that the defendant has filed an application being G.A. No. 3 of 2023 on 12th October, 2023 in which it was mentioned that the defendant has been served with the plaint and on perusal of the plaint, the defendant has preferred an application under Section 8 of the Arbitration and Conciliation Act, 1996. He submits that the statement made in paragraphs 11 and 12 of the present application that the plaint was served in the open Court, Learned Advocate of the defendant could not verify the cause title of the amended plaint is totally incorrect.
Mr. Samanta submits that in paragraph 6 of the G.A. No. 4 of 2024, the defendant has made specific averment that “The defendant instructed its advocate to appear and participate in the said mediation for and on behalf of the defendant. The defendant also caused its Advocate to appear before this Hon’ble Court on 5th December, 2022, 9th January, 2023 and 15th February, 2023 to apprise the Hon’ble Court as to the status of the mediation process”. He submits that the contention made by the Learned Counsel for the defendant that they were not instructed properly is totally incorrect.
Mr. Samanta submits that the defendant has filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 on 12th October, 2023. The said application was also filed with the same cause title and the said application was heard on merit by this Court and by an order dated 10th April, 2024, this Court has dismissed the said application. At the time of hearing of the said application also, the defendant has not raised any objection with regard to the address of the defendant.
On 5th January, 2021, the plaint was presented before this Court and this Court admitted the plaint subject to scrutiny by the department. On the prayer of the plaintiff, leave under Clause 12 of the Letters Patent, 1865 was also granted. This Court also dispense with the formalities of Section 12A of the Commercial Courts Act, 2015 as the plaintiff has prayed for urgent interim relief.
Mr. Samanta relied upon the judgment in the case of Sunil Poddar and Others Vs. Union Bank of India reported in (2008) 2 SCC 326 and submitted that the defendant since beginning appearing in the matter and the defendant had the knowledge of the suit filed by the plaintiff and accepted the amended plaint before this Court and only after acceptance of the amended plaint, in presence of the Counsel for the defendant, this Court has dispensed with for lodging of summons.
Mr. Samanta relied upon the judgment in the case of Asit Kumar Kar Vs. State of West Bengal & Ors. reported in (2009) 2 SCC 703 and submitted that it is the basic principle of justice that no adverse orders should be passed against a party without hearing him.
Heard the Learned Counsels for the respective parties, perused the materials on record and the judgments relied by the parties. The issue is whether the order dated 17th August, 2023 is liable to be recalled or modified?
Order dated 17th August, 2023, reads as follows:
“Counsel for the plaintiff submits that in terms of the order passed by this Court, the plaintiff has carried out the amendment in the name of the defendant and after amendment, the amended plaint has also been served upon the counsel for the defendant.
As the counsel for the defendant has accepted the notice of the amended plaint, hence, for filing fresh writ of summons upon the defendant is dispensed with.
Counsel for the plaintiff submits that the plaintiff has also filed an application being GA/1/2020 praying for an interim order. In the said application also, the name of the defendant is appearing as Crest Logistics and Engineers Private Limited and after filing of the said application, the plaintiff has amended the name of the defendant. Accordingly, the plaintiff has filed a supplementary affidavit in connection with GA/1/2020 for treating the name of the defendant as CLE Private Limited instead of Crest Logistics and Engineers Private Limited.
Copy of the supplementary affidavit is served to the counsel for the defendant. Let the supplementary affidavit be kept with the record.
Counsel for the defendant prays for time to file the written statement in the suit.
Let the written statement be filed within thirty days.
The affidavit in opposition in connection with GA/1/2020 be filed within three weeks from date; reply thereto, if any, be filed within a week thereafter.”
On 5th January, 2021, the plaint was presented before this Court with the prayer for leave under Clause 12 of the Letters Patent, 1865 and dispensation of formalities of Section 12A of the Commercial Courts Act, 2015. This Court admitted the plaint subject to scrutiny by the department and this Court also granted leave under Clause 12 of the Letters Patent, 1865 and dispensed with the formalities of Section 12A of the Commercial Courts Act, 2015. The plaintiff has also prayed for interim order but this Court directed the plaintiff to serve the copy of interlocutory application upon the defendant.
The matter was listed on 30th August, 2022 and on the prayer of the plaintiff, this Court referred the matter for mediation. Both the parties participated in mediation. When the matter was taken up for haring on 5th December, 2022, the Registrar, Original Side has submitted report praying for further time to complete mediation process. Both the parties have also submitted that there is a chance of settlement and require some time. On considering the report of the Registrar and the submissions of the parties, the case was adjourned. Again on 9th January, 2023 both parties pray for time to conclude the mediation process by the mediator and this Court again adjourned the matter. On 15th February, 2023, this Court received report from mediator wherein it is mentioned that the matter is “Not Settled”. On the said date, none appeared on behalf of the plaintiff but Learned Counsel for the defendant submits that the defendant has not received the copy of the plaint along with documents. By an order dated 27th February, 2023, this Court directed the plaintiff to serve the copy of plaint along with all documents and connected applications to the Advocate-on-record of the defendant within a week.
On 13th March, 2023, the defendant has informed this Court that the name of defendant has changed in the year 2019 but the plaintiff has filed the suit against the defendant in the old name of the defendant. The Counsel for the plaintiff prays for time to take appropriate steps to correct the name of the defendant. In the month of April, 2023, the plaintiff has filed an application praying for the following amendments and reliefs:
“17. That in the circumstances as aforesaid, it is necessitated that the following corrections/ amendment be carried out to the plaint and the documents filed along with the plaint, including the affidavits as required under the governing statute, morefully indicated herein below:
(a) That the name 'Crest Logistics and Engineers Private Limited' in the plaint and wherever it appears elsewhere, including but not limited to the documents filed along with the plaint and the connected affidavits and their respective backsheets be amended to 'CLE Private Limited'.
(b) That the particulars 'Crest Logistics and Engineers Private Limited a company within the meaning of the Companies Act, 2013, and carrying on business at Shakespeare Court, Flat No. 5C, 21A, Shakespeare Sarani, Kolkata 700 017, within the aforesaid jurisdiction' as appearing in the cause title be deleted/expunged and the particulars 'CLE Private Limited, a company within the meaning of the Companies Act, 2013, and carrying on business at Shakespeare Court, Flat No. 5C, 21A, Shakespeare Sarani, Kolkata - 700 017, within the aforesaid jurisdiction' be added/incorporated and the plaint accordingly amended.
Prayers :
(a) The addition and/or amendment as indicated in paragraph no.17 of the affidavit in support of the master's summon be allowed;
(b) The plaint and the documents filed along with the plaint and affirmed on behalf of the petitioner company be suitably amended in terms of the proposed amendment as indicated in red ink in the papers forming part of annexure "C" to the affidavit in support of this master's summon;
(c) The concerned department of this Hon'ble Court be directed to amend the plaint and documents filed along with the plaint in terms of the proposed amendment being annexure "C" to the affidavit in support of master's summon;
(d) The petitioner be permitted to re-verify and re-affirm the amended plaint consequent to such amendment being carried out to the plaint and the documents filed along with the plaint, forming part of the present records;
(e) A direction be given to the department of Testamentary to carry out such amendment within four weeks from the date of communication of this order.
(f) Interim and ad-interim orders in terms of the prayers made hereinabove;
(g) Costs of incidental to be paid by the respondent;
(h) Such further order and/or orders as Your Lordships deem fit and proper.”
The amendment application filed by the plaintiff was taken up for hearing on 18th May, 2023 and at the time of hearing, the Counsel for the defendant submits that the amendment sought for by the plaintiff is formal in nature and accordingly, this Court disposed of the amendment application being G.A. No. 2 of 2023 by allowing prayers (a) to (e) of the Master’s Summons (supra). After carrying out the amendment by the plaintiff, the matter was taken up for hearing on 17th August, 2023 and on the said date, the Counsel for the defendant accepted the amended paint and this Court dispensed with for filing of fresh writ of Summons.
Now, the plaintiff has filed the present application stating that the defendant has not changed the address of the defendant and the copy of the amended plaint was served upon the defendant without being carrying out the amendment of the address of the defendant in the cause title.
After filing of the suit, the plaintiff has lodged writ of summons for service upon the defendant but the same was returned unserved with the endorsement “Not Known” and “Not Existing”. After return of writ of summons as unserved, the plaintiff has not taken any steps for issuance of fresh writ of summons.
In paragraphs 9, 15 and 17(b) of the amendment application, the plaintiff has admitted that the name and address of the defendant has been changed. In prayer (a) of the amendment application, the plaintiff has prayed for change of name as well as address of the defendant but in the proposed amendment enclosed with the application for amendment, the plaintiff has only changed the name of the defendant and had not changed the address of the defendant.
The contention of the plaintiff that the Counsel for the defendant has accepted the copy of amended plaint, filed vakalatnama and affidavit of competency and also filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 which was dismissed by this Court but the defendant has not raised any objection with regard to the amendment/ change of address of the defendant.
In the present case, the defendant has filed Vakalatnama along with affidavit of competency with the correct address “Raheja Point, Wing-B, 7th Floor, Nehru Road, Near Shamrao Vithal Bank, Vakola, Santacruz (East), Mumbai, Maharashtra- 400 055. In the affidavit of the amendment application, the plaintiff has described its correct address. In the mediation notice also the correct address as well as the old address of the defendant is mentioned.
The plaintiff in paragraph 17(b) of amendment application has mentioned about the Schedule of Amendment but in the proposed amendment, the plaintiff in the cause title of the plaint, had deleted and under lined the previous name and address of the defendant but in the proposed amendment portion, the plaintiff has only corrected the name of the defendant but has not corrected the address of the defendant and as per the proposed amendment submitted by the plaintiff, the office has carried out the same without amending the address of the defendant.
It is settled law that unless and until complete and legible set of plaint and document is not served upon the defendant, it cannot be said to be a good service of writ of summons upon the defendant. The case in hand, the plaintiff has served the copy of the amended plaint to the Learned Counsel for the defendant on 17th August, 2023 but the defendant has filed the present application on 2nd July, 2024 alleging that the plaintiff has not amended the address of the defendant. The contention raised by the plaintiff that the defendant has filed an application after a considerable time raising objection that the plaintiff has not amended the address of the defendant. In my opinion, the objection raised by the plaintiff is not sustainable. Admittedly, the plaintiff has filed an application for amendment of name and address of the defendant but the plaintiff has only amended the name of the defendant and not amended the address of the defendant. Thus, the amended copy of the plaint served upon the defendant without amending address of the defendant, is not complete document served upon the defendant.
The plaintiff in the amendment application specifically mentioned about the change of name and address of the defendant and this Court has allowed the amendment but at the time of carrying out amendment, the plaintiff has only amended the name of the defendant and not carried out the amendment with regard to the address of the defendant.
The citations relied by the plaintiff are connected with the provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908 but in the present case, it is not denied by the defendant that the defendant has not received the copy of amended plaint but the grievance of the defendant is that the plaintiff has not carried out the amendment with respect to the address of the defendant and incomplete amended copy of plaint served upon the defendant. Thus, the judgment relied by the plaintiff is not applicable in the facts and circumstances of the present case.
In the case of Rajesh Kathpal (supra), the Hon’ble Delhi High Court held that service of summons in a suit, in order to constitute a starting point for the time available for filing of a written statement, has to be meaningful service. In the present case though the amended paint was served upon the defendant but without carrying out the amendment of the address of the defendant. In the amendment application, the plaintiff has prayed for amendment of the name and the address of the defendant but has not carried out the amendment of the address of the defendant. Thus, service of amended plaint upon the defendant cannot be said to be completed service of plaint upon the defendant.
Considering the above, I am of the opinion that the order dated 17th August, 2023, is required to be modified in the following manners:
a. The plaintiff is directed to carry out amendment with respect to the address of the defendant as mentioned in para 17(b) of the amendment application being G.A. No. 2 of 2023 with a period of two weeks from date.
b. After the amendment is carried out to serve the amended copy of the plaint to the defendant within a week thereafter.
c. The defendant is directed to file written statement within 30 days from the date of receipt of the amended copy of the plaint.
G.A. (Com) 4 of 2024 is disposed of.