1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2581 OF 2009 IN SUIT NO. 4782 OF 1997 Airports Authority of India. ... Plaintiffs. V/s. East West Travel and Trade Links Ltd. & Ors. ... Defendants. Mr. M.P.S. Rao a/w. Girish Kulkarni i/b. M.V. Kini & Co. for the Plaintiffs. Ms. Fereshte Sethna a/w. Divya Gurbuxani, Nidhi Singh & A.T. Suryavanshi i/b. Dutta Menon Dunmorr Sett for Defendant No. 3. Ms. Jaishree Surati i/b. S.K. Srivastav & Co. for Defendant No. 1. CORAM : S.C. DHARMADHIKARI,J. DATED : 17TH AUGUST 2009. P.C. :- This is a Notice of Motion by Defendant No.3 for dismissal of the Suit on the ground that the Writ of Summons has not been served. 2. The application is made by Defendant No.3 and supported by an affidavit of their duly Constituted Attorney. It is stated that on 22nd June 2009, when an application for withdrawal of Suit No.1103 of 1995 was moved before this 2 Court seeking withdrawal of that Suit that the Plaintiffs’ Advocates orally stated in their opposition to withdrawal that the present Suit (the later suit) has been filed. They stated that the Suit is pending in this Court and the present Defendant is a party to the same. No copies of the papers and proceedings in the suit were served until the correspondence with the Advocates commenced in 2009 resulted in the Plaintiffs herein forwarding a copy of a draft Notice of Motion dated 4th July 2009 and an affidavit in support thereof. Thereafter, some queries were raised and it transpired that no Writ of Summons at all has been served in the present Suit and it is only that the other Suit being withdrawn by Defendant No.3/Plaintiffs therein that now an attempt is made to urge that Defendant No.3 is aware of the proceedings. 3. My attention is invited by Ms. Sethna appearing in support of this Notice of Motion to Order 1 Rule 10 and Order 9 Rule 5 of the C.P.C. so also the Bombay High Court, Original Side Rules (Rule 154). She also relies upon several decisions of the Calcutta High Court wherein identical rules operate. She submits that if no steps are taken then, Order 9 Rule 5 of the C.P.C. is clear. The Summons ought to be served within the time specified therein and if no extension is sought from the Court, then, the Suit must be dismissed and that are the consequences following in law. She submits that the entire record including the affidavit in reply to the present Motion would indicate that the Plaintiffs have not been diligent at all 3 in proceeding with the Suit. It is not sufficient to urge that Defendant No.3 is a party operating outside India and that it has no Agent in India. If these facts are brought to the knowledge of the Plaintiffs and there are adequate provisions in the C.P.C. enabling the Plaintiffs to effect service of Writ of Summons on the Defendant residing or carrying on business out of India, then, the delay in this case of more than 12 years is incapable of being condoned and the Suit must be dismissed. The Motion invokes these provisions read with Section 151 of the C.P.C. 4. On the other hand, Mr. Rao, learned Counsel appearing on behalf of the Plaintiffs contended that this is not an application made bonafide inasmuch as the Plaintiffs had appeared in the Suit of Defendant No.3 being Suit No.1103 of 1995 and had moved several applications therein. It was pointed out by these very Plaintiffs in Notice of Motion No. 273 of 1997 in Defendant No. 3’s Suit that the Plaintiff herein has a claim for unpaid taxes and statutory dues. That is the dues which must be paid by those operating the Aircraft as the dues are as against the same. In these circumstances, it is not as if in this continuing lis Defendant No.3 was unaware that the Plaintiffs has a interest in the proceedings. That apart, he submits that the record would indicate that the Writ of Summons was transmitted but could not be served. There is no proof available in that behalf in the Sheriff’s Office despite due and diligent search. Further, he submits that erstwhile Advocate of the Plaintiffs M/s. Bhaishankar Kanga 4 and Girdharlal have also not been able to assist the present Advocate who came on record only in the year 2006 with regard to the service of the Writ of Summons. The concerned partner of that firm expired and now, the new Advocates have come on record. They have been diligently pursuing the matter and if the only apprehension of Defendant No.3 is that the trial will b e delayed, then, that can be taken care of by directing that recording of evidence shall commence expeditiously. This Court can issue appropriate directions in that behalf and the Plaintiff would abide by the same. For all these reasons, the Writ of Summons not being served is no ground to dismiss the present Suit. 5. With the assistance of the learned Counsel appearing for both sides, I have perused this Notice of Motion and the affidavit filed in reply and rejoinder. The reply affidavit that is filed on behalf of the Plaintiffs makes a reference to the other Suit between the Plaintiffs and the Defendant. The reply affidavit demonstrates that a Writ of Summons was taken out on 15th July 1998, it was lodged in the Office of Sheriff of Bombay on 1st August 1990 and thereafter on 17th August 1990. It is stated in paragraph 3 that the Office of Sheriff of Bombay made an endorsement on the original Writ of Summons and therefore, it is clear that the Writ of Summons was transmitted. My attention is also invited by Mr. Rao to a letter which was addressed to M/s. Crawford Beley & Co. wherein the present Advocates for Defendant No.3 are informed by M/s. Crawford Beley & Co. stating therein that 5 they have not filed their appearance in the instant Suit. They state that it is unlikely that they are served with any papers in connection with the captioned matter. Mr. Rao urges that there was no occasion for seeking such a clarification from M/s. Crawford Beley and Co. inasmuch as Defendant No.3 state that they were the Plaintiff in Suit No.1103 of 1995 and at one stage they were represented by M/s. Crawford Beley & Co. in that Suit. In such circumstances, there was no occasion for Defendant no.3 to seek any clarification from their own Advocate and this would demonstrate that Defendant No.3 had knowledge of the pendency of the present Suit. In any event, Mr. Rao would urge that public monies are at stake and the Suit is pending for last 12 years, at this stage, it should not be dismissed on this ground and when the Plaintiffs are now ready and willing to abide by the directions that may be issued. 6. I have perused order 9 Rule 5 of the C.P.C. as it reads in the State of Maharashtra. The said Rule appears in provisions dealing with appearance of parties and consequences of non- appearance. The said provision enables the Court to dismiss the Suit, if the Plaintiff fails for a period of two months from the next hearing of the Suit to apply for an issue of a fresh summons. It is stated in this Notice of Motion by filing an affidavit that the Plaintiff had transmitted the original writ of summons. Further, what has been set out in para 3 of the affidavit in reply of the Plaintiffs to the present Notice of Motion, is sought to be dealt with by Defendant No.3 in their 6 rejoinder but it is stated that there is no scope for granting any further opportunity to the Plaintiffs to serve the writ of summons. The entire sequence from 11th October 2005 has been pointed out and the matter was placed before the Prothonotary and Senior Master. The Suit was dismissed as against Defendant Nos. 2 to 4, 6,7,10,12 and 14 for default on 21st June 2006. In these circumstances, Ms. Sethna would urge that there is no scope for holding that the Plaintiffs have used its best endeavour to discover the residence of the Defendants who have not been served or that there is any other sufficient cause for extending the time. She submits that the consequences in law must follow. 7. However, in para 9 of the rejoinder affidavit, Defendant No.3 states that assuming without admitting about the transmitting of the writ of summons, the Plaintiffs themselves admittedly have conceded that even in the year 2006 the service was not complete. In such circumstances, what I find from the record is that it cannot be assumed that that the Plaintiffs in this case has failed to take the necessary steps to have the writ of summons issued to the Defendants. Further, it is pointed out that the earlier Advocates, who were on the record could not assist the present Advocates of the Plaintiffs with the papers and proceedings in the present Suit. Further, the concerned partner had expired in the meanwhile. It appears that from the year 2006 when the new set of Advocates have come on record, some steps have been taken but they are not fully satisfactory. Yet, it is not as if they 7 should entail in the dismissal of the Suit. Some notice will have to be taken in the peculiar facts of the case about pendency of the Suit in this Court for a longer duration. The Suits are not listed immediately on the dates mentioned in the writ of summons for directions. Once some directions are issued, the Suit papers are assigned to the records and thereafter, the matter is not appearing on Board. In such circumstances, if there is any negligence or inaction on the part of the Advocates or the parties that should not straightway entail in dismissal of the Suit. The Court can while rendering substantial justice ensure compliance with procedural laws by imposing stringent conditions including payment of costs. In these circumstances, I am unable to uphold the contention of Defendant No.3 that the Suit should be dismissed. More so, when between same parties earlier Suit was pending in this Court, the affidavits filed filed in support of the Notice of Motion and in Rejoinder deal with the Suit claim on merits. Thus, Defendant No.3 was aware of the pendency of the present Suit. Else, it would not have served the papers in its Suit (No. 1103 of 1995) on Plaintiff herein / Defendant in that Suit, when it made an Application for withdrawal of the same. This is not a case where there is complete inaction or utter negligence. 8. The decisions brought to my notice by Ms. Sethna undoubtedly hold that the Court has a power to dismiss the Suit if there is no service of the writ of summons. However, in those case there was no dispute that the Plaintiffs failed to 8 take any of the steps envisaged by Order 9 Rule 5(i) of the C.P.C. within the specified period. In the context whether the Court should then invoke Section 5 of the Limitation Act, 1963 that the Calcutta High Court Division Bench in AIR 1979 page 8 (Electrical Industries Corporation V/s. Punjab National Bank & Ors.) rejected the request and dismissed the application for restoration of the Suit. Similar is the case in the decision reported in AIR 1954 Calcutta page 369 (Shaw & Co. V/s. B. Shamaldas & Co.). There also the Single Judge of the Calcutta High Court dismissed the Suit. However, all pleas were taken into consideration including the last one that there is a waiver of Writ of Summons. 9. The other decision brought to my notice reiterates the settled principle by relying upon the earlier decision of the Calcutta High Court itself. As held by me this is not a lapse which is incapable of being condoned. In the present case, when the steps were taken to transmit the Writ of Summons but thereafter, even the Sheriff’s Office being unable to assist the Court, it would not be fair and proper to dismiss the Suit at the request of Defendant No.3. Ultimately, this is a procedural aspect and all procedural provisions are meant for assisting the Court in rendering justice. In such circumstances, I am inclined to take a liberal view of the matter in the light of the peculiar facts of this case. 10. However, while dismissing this Notice of Motion, I direct that the Plaintiffs should take necessary steps within a period 9 of 12 weeks from today and also pay costs quantified at Rs. 10,000/- to Defendant No.3. In case, the present Advocate for Defendant No.3 does not waive service of Writ of Summons, the Plaintiffs must take the necessary steps and under no circumstances any extension would be granted. (S.C. DHARMADHIKARI,J.)