Case: Auto Cars Vs. Trimurti Cargo Movers Pvt. Ltd. &amp; Others

2. This appeal is filed against the final judgment and order dated 24.04.2017 passed by the High Court at Calcutta in A.P.O. No.200 of 2017 in C.S. No.15/14 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein and affirmed the order dated 18.08.2016 passed by the Single Judge of the High Court in GA No.766 of 2016, in consequence, affirmed the exparte decree dated 09.02.2015 in C.S. No.15 of 2014.  3. The controversy involved in the appeal lies in a narrow compass. However, few facts need mention infra to appreciate the controversy.  4. The appellant is defendant No.1 whereas respondent No.1 is the plaintiff and respondent Nos. 2 and 3 are defendant Nos.2 and 3 in the civil suit out of which this appeal arises.  5. The plaintiff (respondent No.1) filed a civil suit being C.S. No 15 of 2014 in the High Court at Calcutta on its original side against the defendants (appellant and respondent Nos.2 and 3) for recovery of Rs.1,43,18,537/on 13.01.2014. The suit was based on some commercial dealings exchanged between the parties in relation to services and supply of goods etc.  6. It is, however, not necessary for the disposal of this appeal to refer in detail the facts on which the suit was founded to claim the amount in question from the defendants.  7. The summons of the suit was initially sent to the defendants at their place of business mentioned in the cause title of the plaint, which was shown at Aurangabad (MH). Since the defendants were not being served with the ordinary mode of service, the plaintiff sought permission to serve them with the substituted service by way of publication under Order V Rule 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The permission was granted to the plaintiff.  8. The summons dated 17.11.2014 was accordingly published in the Times of India (Pune Edition) and Dainik Bhaskar(Aurangabad Edition) on 25.11.2014. The summons, which was published in papers, reads asTimes of India, Tuesday, Nov. 25, 2014  C.S. No.15 of 2014  IN THE HIGH COURT AT CALCUTTA  Ordinary Original Civil Jurisdiction  Original Side  M/s. Trimurti Cargo Movers Pvt. Ltd. a company incorporated under the Companies Act, 1956 having its registered office atM/s Auto Cars, a registered partnership firm having its office at Adalat Road,outside the aforesaid jurisdiction and branch office atMr. Venugopal Dhoot, Partner of M/s. Auto Cars of Adalat Road,outside the aforesaid jurisdiction. ......  Defendants  To,  1.Mr. Raj Kumar Dhoot, Partner of M/s. Auto Cars of Adalat Road,Sir,  Notices hereby given under Order V Rule 20 of the Code of Civil Procedure, 1908 that the plaintiff above named had filed a suit against you before this Honble High Court at Calcutta on or about 13.01.2014 inter alia praying for leave under Clause 12 of the Letters Patent, 1865 and claims and reliefs:  (a) A decree of Rs.1,63,34,537/against the defendant as pleaded in paragraph 14 above;  (b) Interest at the rate of Rs.25% per annum;  (c) Interim interest and interest upon judgment on the aforesaid decreetal amount until realization;  (d) Receiver;  (e) Injunction;  (f) Attachment;  (g) Costs;  (h) Such further or other relief(s)  You are hereby required to cause an appearance to be entered for you in the office of the Registrar of this Court within 15 days from the service upon you by way of publication of this summons, exclusive of the day of such service and are summoned to appear before this Court in person or by an advocate of the court to answer the plaintiffs claim on the day the case is set down for hearing, upon which date you must be prepared to produce all your witnesses or power upon which you intend to rely in support of your case.  You are hereby required to take notice that in default of your causing an appearance to the so entered the suit will be liable to be heard and determent in your absence.  Witness: Mrs. Manjula Chellur, The Chief Justice, At Calcutta aforesaid the 13th day of November, 2014.  Arka Kumar Ghosh  Master  17/11/14  (Santosh Kumar Ray)  Plaintiffs Advocate on Record  Kiran Shankar Roy Road  2nd Floor, Room No.The defendants did not appear in the case, as directed in the summons, therefore, the Court placed the defendantsand proceeded to decide the suit on merits in their absence and eventually on 09.02.2015 passed andecree against the defendants for a sum of Rs.1,43,18,537/together with simple interest @ 12% p.a. from 01.05.2013 till the date of payment.  10. On coming to know of passing of the decree against them, the defendants filed an application under Order IX Rule 13 of the Code on 08.03.2016 before the Court (GA No. 766/2016) praying therein for setting aside thedecree inter alia on the ground that the summons of the suit was not duly served on them, therefore, they had no knowledge of filing of the suit by the plaintiff against them. The defendants also contended that their place of business is at Aurangabad whereas the summons in question was published in the daily newspaper, Times of India at Pune. The defendants, therefore, contended that due to this reason a case for setting aside of thedecree, as contemplated under Order IX Rule 13 of the Code, is made out and hence theexparte decree dated 09.02.2015passed in Civil Suit No.15/2014 be set aside and the defendants be permitted to contest the suit on merits.  11. The plaintiff filed their reply and contested the application filed by the defendants. According to the plaintiff, there was no illegality or irregularity in the service of the summons on the defendants and since despite service of the summons made pursuant to the publication in the newspapers, the defendants failed to appear in the suit, therefore, they were not entitled to seek any indulgence nor entitled to seek setting aside of the decree under Order IX Rule 13 of the Code.  12. The Single Judge, by judgment dated 18.08.2016, dismissed the application filed by the defendants holding that the summons were duly served on them. The defendants felt aggrieved and filed appeal before the Division Bench of the High Court. By impugned judgment, the Division Bench dismissed the appeal and affirmed the judgment of the Single Judge.  13. The appellant (defendant No.1) felt aggrieved by the judgment of the Division Bench and filed the present appeal by way of special leave before this Court.

Reasoning:
15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned judgment allow the application filed by the defendants under Order IX Rule 13 of the Code and, in consequence, set aside the ex parte decree 09.02.2015 passed in Civil Suit No. 15/2014 and restore the suit on its file for being tried on merits in accordance with law.In our considered view, the issue involved in the appeal is required to be examined keeping in view Section 27,appended to the Code read with Order V Rule 20(3) and Order IX Rule 13 of the Code.Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix "time" for the appearance of the defendant, as the case may require. In our opinion, this does not dispense with the requirement of mentioning the actual day, date, year and time for defendants appearance in the Court because it is prescribed in format.The expression "time" has to be read harmoniously and in juxtaposition with the requirement prescribed under Section 27 read with statutory format Process IA ofappended to the Code.Indeed, mentioning of the specific "day, date, year and time" in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and the place to appear in the particular Court in answer to the suit filed by the plaintiff against him.Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with(process) No.I and IA.In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law.The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) andB, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner.What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B.In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the. The object behind sending the summons is essentially threefoldFirst, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer.