ATLANTA LIMITED Vs. METSO INDIA PVT LTD

JUDGEMENT

(1.) This otherwise routine application raises an important question in suits under the Commercial Courts Act, 2015 ("the CCA"). That Act sets an outer limit within which a defendant to a commercial suit must file his written statement. Im Axis Bank Ltd v Mira Gehani & Ors,2019 SCCOnlineBom 358. Kathawalla J held that the Court has no power to extend time beyond that date. Time begins to run from the date when the writ of summons is served. But the CCA also says that the provisions of the Code of Civil Procedure, 1908 ("the Code") are to govern. Where there is a conflict - say with the Rules framed by a Chartered High Court on its Original Side - the Code prevails. The issue before me is about this: the correct form and procedure of the writ of summons. And the conflict is this: the Bombay High Court (Original Side) Rules ("the Rules") do not require a copy of the plaint to accompany the writ of summons. The relevant form of the writ of summons in the Rules has a note at its foot. This says that the served defendant may seek a copy of the plaint from the plaintiff or his advocate, and it will be furnished 'on demand'. In contrast, Order 5, Rules 1 and 2 of the Code require the writ of summons to be accompanied by a copy of the plaint.

(2.) It seems that in the Commercial Division of this High Court on its Original Side, a wholly incorrect procedure is being followed. Although suits in the Commercial Division are governed by the CCA, and therefore it is the Code that applies to them and not the Rules, writs of summonses are being issued in the form under the Rules, not the Code, that is to say, without an accompanying copy of the plaint. When, therefore, in a commercial suit to which the CCA applies, and, consequently, the Code, and writ of summons is served without an accompanying copy of the plaint, can it be said that there is good and proper service of the writ of summons? If yes, then the question of limitation in filing the written statement arises. If not, and the service of the writ of summons is bad - no service at all - then there can be no question of the defendant having to face any question of limitation.

(3.) The application is by the Defendant ("Metso") in a commercial suit. Metso seeks an order condoning a delay in filing its written statement. Mr Andhyarujina for Metso says the delay is 78 days computed from the date when Metso received a copy of the plaint from the Plaintiff ("Atlanta") or its advocates. The writ of summons was served without a copy of the plaint. If time is to run against Metso from the date of service of the writ of summons, then Metso is out of time, albeit by a few days. For Atlanta, Mr Vashi would have it that the written statement is wholly out of time. Limitation can only be computed from the date of service of the writ of summons and nothing else.