IRIDIUM INDIA TELECOM LTD Vs. MOTOROLA INC

JUDGEMENT

(1.) Leave granted.

(2.) This appeal impugns the judgment of the Division Bench of the High Court of Judicature at Bombay in a Letters Patent appeal holding that the amended provision of Order VIII, Rule 1 of the Code of Civil Procedure 1908 (hereinafter referred to as the CPC) would not apply to the suits on the Original Side of the High Court and that such suits would continue to be governed by the High Court Original Side Rules. Facts:

(3.) The appellant company filed Suit No. 3092 of 2002 on 16-9-2002 on the Original Side of the High Court of Judicature at Bombay claiming about Rs. 1000 crores on the ground that it had suffered loss and / or damages on account of an alleged fraud on the part of the respondent, a foreign corporation incorporated in the United States of America. The appellant also obtained an ex parte order against the respondent in the nature of an attachment before judgment of receivables in India. On 17-9-2002, the first respondent claims to have dispatched the plaint and all connected papers by courier along with a covering letter of the same date. According to the appellant, the Sheriff of Bombay was requested to transmit the writ of summons along with the plaint and the other proceedings by Regd. A.D. post or by air mail to the respondent, and the Sheriff had done it. On 1-10-2002 the respondent filed a detailed affidavit along with an application to vacate the ex parte an interim order made on 16-9-2002, as a result of which the ex parte order was modified by the High Court on 3-10-2002. On 16-10-2002 a second Notice of Motion was filed by the appellant. The respondent filed an affidavit opposing the prayers made in the second Notice of Motion. After hearing the parties, the High Court by an order made on 24-10-2002 refused the ad interim reliefs sought in the second Notice of Motion. Though the appellant preferred an appeal from both the Orders dated 3-10-2002, modifying the earlier ex parte order, and the refusal of ad interim reliefs on 24-10-2002, that appeal was finally withdrawn. On 2-3-2003, the appellant applied for issue of duplicate summons. On 13-3-2003 the respondent filed a comprehensive affidavit in reply to the Notice of Motion. On 9-4-2003, duplicate summons were served upon the respondent. On 2-5-2003 the respondent applied for extension of time purportedly under Order VIII, Rule 1 of CPC, by a letter addressed to the Prothonotary and Senior Master, High Court of Bombay. The matter came before the learned Single Judge, who after hearing both the sides was of the view that "granting of 90 days time from 9-4-2003, the date on which the duplicate writ of summons had been admittedly served upon the respondent, would provide ample opportunity to the respondent to file written statement on or before 8-7-2003". Although, a prayer was made that the Court may exercise its powers under Section 148 of the CPC and grant further extension of 30 days beyond 8-7-2003, that request was declined on the ground that the request was premature and would be considered only on 8-7-2003, provided the defendant-respondent was able to show sufficient cause for such an indulgence." Further time to file written statement was granted on payment of costs quantified at Rs. 10,000 to be paid to the plaintiff-appellant. According to the respondent, the written statement was ready by 6-7-2003, but had not yet been affirmed. The respondent moved the Court for further extension of time. This request was also opposed by the appellant. By an order made on 7-7-2003, the High Court extended time up to 28-7-2003.