Source: High Court of Bombay  

Why in News? 

Recently, Justice Abhay Ahuja held that in a transferred suit filed prior to the Commercial Courts Act, formal service of writ of summons is not required if the defendant has already entered appearance or filed Vakalatnama at the interlocutory stage. 

• The High Court of Bombay held this in the matter of Anil Dhanraj Jethani and another v. Firoz A. Nadiadwala and others (2025). 

What was the Background of Anil Dhanraj Jethani and another v. Firoz A. Nadiadwala and others. (2025) Case? 

• On 19th August 2015, the Plaintiffs filed Suit No. 1148 of 2015 as a regular civil suit in the Bombay High Court seeking recovery of Rs. 24,00,00,000/-. 
• The suit was filed prior to the enactment of the Commercial Courts Act, 2015, which came into effect on 23rd October 2015. 
• On 20th August 2015, copies of the plaint along with exhibits and notice of motion were served upon Defendant No. 1, who was notified of the hearing date of 24th August 2015. 
• Defendant No. 1 appeared through India Law Alliance and was represented by a Senior Advocate at the hearings on 24th August 2015, 28th August 2015, and 1st September 2015. 
• On 1st September 2015, a consent order was passed whereby Defendant No. 2 deposited Rs. 12,50,00,000/- in court with liberty to Plaintiffs to withdraw unconditionally, and the balance Rs. 11,50,00,000/- was to be paid prior to release of Defendant No. 1's next production film. 
• On 21st October 2016, the Prothonotary & Senior Master converted the regular suit to Commercial Suit No. 88 of 2015 and transferred it to the Commercial Division of the court. 
• The Prothonotary & Senior Master directed the original Defendants to file written statements by 21st November 2016, later extended to 13th December 2016. 
• When Defendants No. 1 and 2 neither appeared nor filed written statements, the suit was transferred to the list of undefended suits on 13th December 2016. 
• On 9th June 2023, Defendant No. 1 filed the present application claiming that no formal writ of summons was ever served upon them, constituting a procedural offence under the applicable rules. 

What were the Court’s Observations? 

• The Court observed that since the captioned suit was originally filed as a regular suit prior to the enactment of the Commercial Courts Act, 2015, and subsequently converted to a commercial suit, the rigours of the Commercial Courts Act and amended Civil Procedure Code,1908 (CPC) provisions relating to service of summons do not apply to transferred suits. 
• The Court noted that Defendant No. 1 had already entered appearance at the interlocutory stage and filed Vakalatnama, thereby satisfying the object and purpose of serving a writ of summons, making formal service redundant. 
• The Court observed that in transferred suits under Section 15(4) of the Commercial Courts Act, it is the Commercial Division of the Court that has the discretion to fix timelines, not the mandatory 120-day period applicable to fresh commercial suits. 
• The Court found that proof of service of writ of summons may be dispensed if circumstances show that the defendant not only had notice of the suit but actually appeared in the proceedings, even at the interlocutory stage. 
• The Court observed that the orders dated 21st October 2016 and 13th December 2016 passed by the Prothonotary & Senior Master were without jurisdiction, as only the Commercial Division could fix timelines for transferred suits under Section 15(4). 
• The Court noted that Defendant No. 1 was not only served with copies of the plaint, exhibits and notice of motion, but was also represented by senior advocates at multiple hearings, indicating full knowledge of the plaintiffs' claim. 
• The Court observed that it would be too technical and result in a wastage of judicial time to insist on formal service of writ of summons when the defendant had already appeared and was aware of the nature of the claim. 
• The Court found that the distinction between fresh commercial suits and transferred suits is expressly carved out under the Commercial Courts Act, and no discrimination or unfair treatment arises from applying different procedural requirements. 
• The Court observed that the failure to serve formal writ of summons does not constitute a procedural offence warranting dismissal of the suit in cases of transferred suits where the defendant has entered appearance and filed Vakalatnama.

What is Order V of CPC,1908? 

• Order V of the CPC, which deals with the "Issue and Service of Summons". 
• Issue of Summons (Rules 1-8): 
  • When a suit is filed, summons may be issued to defendants requiring them to appear and file their written statement within 30 days. 
  • Defendants can appear in person, through a pleader, or with a pleader accompanied by someone who can answer material questions. 
  • Courts can order personal appearance, when necessary, but only for parties residing within specified distance limits. 
  • Summons must specify whether it's for settlement of issues only or final disposal of the suit. 
• Service of Summons (Rules 9-30):  
  • The rules provide detailed procedures for serving summons through various methods: 
  • Regular service: By court officers, registered post, speed of post, courier services, or electronic means (fax, email). 
  • Service on agents: When defendants have authorized agents or are absent. 
  • Service on family members: When the defendant is absent and no agent is available. 
  • Substituted service: When defendants are avoiding service - by affixing copies in conspicuous places or newspaper advertisements. 
  • Special service situations: For defendants in prison, residing outside India, military personnel, public officers, etc. 
• Important Time Limits: 
  • Defendants must file written statements within 30 days of service. 
  • Extension possible up to 120 days maximum with court permission and payment of costs. 
  • After 120 days, defendants forfeit the right to file written statements. 
• Cross-jurisdictional Service:  
  • The rules cover service when defendants reside in different states, foreign countries (including specific provisions for Bangladesh and Pakistan), and through diplomatic channels. 
• This Order ensures proper notification to all parties in civil suits while providing flexibility for various practical situations that may arise during the service process. 

Cases Referred  

• Tardeo Properties Pvt. Ltd. v. Bank of Baroda (2007): 
  • Entering appearance at the interlocutory stage/filing of Vakalatnama will not do away with the requirement of serving a writ of summons. 
• Meena Ramesh Lulla and Others v. Omprakash A. Alreja and Another (2011): 
  • If the Defendant enters an appearance/files Vakalatnama, formal service of writ of summons cannot be insisted upon and the suit is deemed to have been served. 
• Bombay High Court Notification,2008: 
  • If a Defendant/Respondent has entered an appearance and filed its Vakalatnama, "there shall be no necessity of serving the Writ of Summons or filing Affidavit of service".