Nihal Shaikh September 21 2021 Bombay High Court rules – must copy of plaint be annexed to writ of summons? Clasis Law | Litigation - India Nihal Shaikh Litigation Interactions unavailable in preview. FactsDecisionIn their 26 August 2021 judgment of Atlanta Limited v Metso India Pvt Limited,(1) a single judge of the Bombay High Court aptly answered whether a copy of the plaint is required to be annexed to the writ of summons in light of the rules framed by a chartered high court, even if they are oppugnant to the provisions under the Code of Civil Procedure 1908 (the CCP).FactsThe defendant, Metso India Pvt Limited, filed an application for condonation of delay in filing a written statement in a suit under the Commercial Courts Act 2015 (the CCA). The defendant contended that the writ of summons that it had received from the applicant had lacked a copy of the plaint and that the plaint had been served after a period of 14 days from the date of receipt of the writ of summons, which had resulted in a delay.The plaintiff, Atlanta Limited, opposed the application on the grounds that the delay caused by the filing of the written statement was not condonable in light of Order 5(1) as amended by Act 4 of 2016, which stipulates a maximum period of 120 days from the date of service of the writ of summons. The plaintiff further contended that the writ of summons had been properly served by it based on Form 9, Chapter 6 of the Original Side Rules of the Bombay High Court.While Order 5(2) of the CCP mandates the attachment of the plaint with every service of plaint, Form 9, which provides for the draft writ of summons, states that a copy of the plaint should be served on the defendant only on demand. In view of the above, the issue for the Court's consideration was whether a copy of the plaint must be annexed with the writ of summons in light of Bombay High Court rules.DecisionThe Court answered in the affirmative, opining that there is no way a defendant can know what they are required to answer on the day of appearance unless the plaint has been provided to them. The Court referred to the judgment in Nahar Enterprises v Hyderabad Allwyn,(2) in which the Supreme Court observed that without a copy of the plaint and other documents, it was not possible for the defendant to submit the written statement. The Court further noted that a similar observation was made by the Calcutta High Court in Sureschandra Sarkar v Gosaidas Pal.(3) The Court held that no disadvantage was caused to the plaintiff by providing a copy of the plaint with the writ of summons. It was also emphasised that as the plaintiff is required to furnish a copy of the plaint as and when asked for by the defendant anyway, not providing the defendant with the summons from the outset, in light of the rules, did not make any sense.With regard to the conflict of rules, the Bombay High Court stated that it was specifically provided for in section 16(3) of the CCA that if there were any conflicts between the provisions of the CCP and any jurisdictional high court, the provisions of the CCP would prevail. The Court cited the judgment of another single-judge bench of the Bombay High Court in Axis Bank Ltd v Mira Gehani,(4) in which the Court held that:only those rules of the Bombay High Court (Original Side) Rules which are in conflict with the provisions introduced by the Commercial Courts Act, will stand superseded by the introduction of the Commercial Courts Act.The Court held that in the Commercial Division of the Bombay High Court, the procedures in the rules for service of a writ of summons would not apply and that it is only the CCP, as amended by the CCA, which will govern commercial suits – specifically, Order 5(2) with regard to the service of the writ of summons, which mandates annexing the copy of plaint with the summons. The Court also directed the registry to immediately examine all suits and issue any necessary guidelines in cases where summons have not yet been issued. With regard to non-compliant suits where summons have been improperly issued, the Court ordered the registry to seek directions on a case-by-case basis. When the question of whether such a judgment affected past decrees or decrees in execution was raised, the Court specifically stated that the effect of the judgment would be prospective and would not affect any decrees passed prior to this judgment.While in the process of deciding the case, the Court evinced great concerns as regards delays by plaintiffs in general in removing defects in plaints, and it requested the registry to frame appropriate rules on this issue.Further, the Court also examined the question of limitation in cases where a copy of the plaint is not annexed to the writ of summons. The Court observed that in such a scenario, as the writ of summons would not have been properly serviced, the bar of limitation could not be made applicable.In light of this judgment, Form 9 was amended with consideration for Practice Note 58, reflecting the Court's decision (ie, making it mandatory to attach a copy of the plaint to the writ of summons).For further information on this topic please contact Nihal Shaikh or Nikhil Shirsekar at Clasis Law by telephone (+91 11 4213 0000) or email ([email protected] or [email protected]). The Clasis Law website can be accessed at www.clasislaw.com.Endnotes(1) IA 425 of 2019 in Comm Suit 765 of 2019.(2) (2007) 9 SCC 466.(3) AIR 1976 Cal 87.(4) 2019 SCC OnLine Bom 358.