Auto Cars Vs Trimurti Cargo Movers Pvt. Ltd. .

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2113 OF 2018 (Arising out of S.L.P.(C) No. 14648 of 2017)

Auto Cars ….Appellant(s)

VERSUS

Trimurti Cargo Movers Pvt. Ltd. & Ors. ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

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.

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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 ex-

parte 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

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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.

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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 as under:

“Advertisement

The Times 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 at 157-C, Lelin Sarani, Kolkata-700013, Police Station Tal Totlla within the aforesaid jurisdiction and branch office at 305, Shivam Chamber, S.V. Road, Goregaon, Mumbai-400062.

…..Plaintiff

Versus

1. M/s Auto Cars, a registered partnership firm having its office at Adalat Road, Aurangabad-4310001 outside the aforesaid jurisdiction and branch office at 39-A, Harish Mukherjee Road, Kolkata-700025.

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2. Mr. Venugopal Dhoot, Partner of M/s. Auto Cars of Adalat Road, Aurangabad-4310001 outside the aforesaid jurisdiction.

……Defendants To,

1. Mr. Venugopal Dhoot, Partner of M/s. Auto Cars of Adalat Road, Aurangabad-4310001.

2. Mr. Raj Kumar Dhoot, Partner of M/s. Auto Cars of Adalat Road, Aurangabad-4310001

Dear 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 Hon’ble 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

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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 6 Kiran Shankar Roy Road 2nd Floor, Room No.707, Kolkata-700001

9) The defendants did not appear in the case, as

directed in the summons, therefore, the Court

placed the defendants ex-parte and proceeded to

decide the suit on merits in their absence and

eventually on 09.02.2015 passed an ex-parte decree

against the defendants for a sum of

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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 the ex-parte decree 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 the ex-parte decree, as contemplated under

Order IX Rule 13 of the Code, is made out and

hence the ex-parte decree dated 09.02.2015 passed

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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

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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.

14) Heard Mr. Shekhar Naphade, learned senior

counsel, for the appellant, Mr. S. Chakraborty,

learned counsel for respondent No.1 and Mr.

Shashibhushan P. Adgaonkar, learned counsel for

respondent Nos.2 & 3.

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

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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.

16) In our considered view, the issue involved in

the appeal is required to be examined keeping in

view Section 27, Appendix-B appended to the Code

read with Order V Rule 20(3) and Order IX Rule 13

of the Code.

17) Section 27 of the Code deals with issuance of

the summons to defendants. It says that where a

suit has been instituted, summons may be issued

to the defendant to appear and answer the claim

and may be served in the "manner prescribed on

such day" not beyond thirty days from the date of

the institution of the suit.

18) The format of the summons, which is used for

effecting service on the defendant, is prescribed in

Appendix-B, Process No.I. So far as Calcutta is

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concerned, the State has amended the format of the

summons as Process No.IA. These formats are

appended to the Code and read as under:

“APPENDIX B PROCESS

No.1 SUMMONS FOR DISPOSAL OF SUIT (O.V, r. 1

and r.5) (Title)

To ………………………………………….. [Name,

description and place of residence.]

Whereas………………………………………… …has instituted a suit against you for ……………………………………… you are hereby summoned to appear in this Court in person or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person, able to answer all such questions, on the ……… day of …….. 19…/20….., at …….O’clock in the …… noon, to answer the claim; and as the day fixed, for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence.

Take notice that, in default of your appearance on the day before mentioned, the

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suit will be heard and determined in your absence.

Given under my hand and the seal of the Court, that ……. Day of….. 19…./20…..

Judge.

Notice-1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses.

2. If you admit the claim, you should pay the money into Court together with the costs of the suit,to avoid execution of the decree, which may be against your person or property, or both.”

“Calcutta- After Form No.1, insert the following Form, namely:-

“No. 1A SUMMONS TO DEFENDANT FOR

ASCERTAINMENT WHETHER THE SUIT WILL BE CONTESTED

(O.V, rr. 1 and 5) (Title)

To ………………………………………….. [Name,

description and place of residence.]

WHEREAS ………………………. has instituted suit against you for …… you are hereby summoned to appear in this Court in person or by a pleader duly instructed, and able to answer all material questions relating the suit on the day of …… 19…/20…., at O’clock in the …….. noon in order that on

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that day you may inform the Court whether you will or will not contest the claim either in whole or in part and in order that in the event of your deciding to contest the claim either in whole or in part, directions may be given to you as to the date upon which your written statement is to be filed and the witness or witnesses upon whose evidence you intend to rely in support of your defence are to be produced and also the document or documents upon which you intend to relay.

Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence and take further notice that in the event of your admitting the claim either in whole or in part the Court will forthwith pass judgment in accordance with such admissions.

Given under my hand and the seal of the Court this day of …… 19……/20…… .

Judge.

Notice- If you admit the claim either in whole or in part you should come prepared to pay into Court the money due by virtue of such admission together with the costs of the suit to avoid execution of any decree which may be passed against your person or property, or both.” (w.e.f. 25-8-1927)”

19) The aforementioned format of Process No.I is

uniformly prescribed for effecting service of

summons which are issued under Order V Rules 1

and 5 of the Code. It is, however, noticed that so far

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as State of UP (Allahabad) is concerned, it has

prescribed a special format of the summons for

service under Order V Rule 20 whereas so far as

Calcutta is concerned, it has not specifically

prescribed any special format for effecting service

under Order V Rule 20 of the Code on the defendant

but has prescribed a special format for effecting

service under Order V Rules 1 and 5 of the Code.

20) Since no specific format is prescribed for

effecting service of the summons under Order V

Rule 20 of the Code by Calcutta except prescribing

a special format for effecting service under Order V

Rules 1 and 5 of the Code, the format prescribed for

service of summons under Order V Rules I and 5 of

the Code is also used for issuance of summons for

effecting service under Order V Rule 20 of the Code.

21) In the format prescribed in the Appendix-B

Process No.I or No.IA (which is applicable to the

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case at hand because the suit in question originates

from Calcutta), we find that there is a specific

column in the summons where a “day, date, year

and time” for defendant's appearance is required to

be mentioned.

22) In other words, the legislature while

prescribing the format of summons in the Code has

provided one column where the Court is required to

mention a specific “day, date, year and time” for the

defendant's appearance in the Court to enable him

to answer the suit filed against him/her. This is

also the requirement prescribed under Section 27 of

the Code as is clear from the words occurring

therein “and may be served in the manner

prescribed on such day”.

23) 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

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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 defendant's appearance in the

Court because it is prescribed in format.

24) The expression “time” has to be read

harmoniously and in juxtaposition with the

requirement prescribed under Section 27 read with

statutory format Process IA of Appendix-B appended

to the Code.

25) 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

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particular Court in answer to the suit filed by the

plaintiff against him.

26) If the specific day, date, year and the time for

defendant's appearance in the Court concerned is

not mentioned in the summons though validly

served on the defendant by any mode of service

prescribed under Order V, it will not be possible for

him/her to attend the Court for want of any fixed

date given for his/her appearance.

27) The object behind sending the summons is

essentially threefold- First, 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

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his/her appearance in the said case and answer the

suit either personally or through his lawyer.

28) 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 Appendix-B

(process) No.I and IA.

29) 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.

30) 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

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read with Order V Rule 20(3) and Process-IA of

Appendix-B, 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.

31) 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

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advocate to answer the plaintiff's 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.

32) 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.

33) In the light of the foregoing discussions,

service of summons on the defendants without

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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 Code.

34) It is for this reason, we are of the considered

opinion that the appellant (defendant No.1) was able

to make out a ground contemplated under Order IX

Rule 13 of the Code for setting aside the ex parte

decree.

35) Once the appellant (defendant No.1) is able to

show that “summons were not duly served on him"

as prescribed under Section 27 read with Appendix

B Process IA and Order V Rule 20(3) of the Code

then it is one of the grounds for setting aside the ex

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parte decree under Order IX Rule 13 of the Code. In

our view, the appellant (defendant No.1) is able to

make out the ground.

36) In view of the foregoing discussion, we need

not consider any other ground though raised by the

appellant(defendant No.1) in support of their case

because the aforesaid ground which we have dealt

with though not raised by the appellant in the

Courts below but being a pure question of law and

going to the root of the matter affecting the very

jurisdiction of the Court could be allowed to be

raised in this Court for doing substantial justice.

37) Before parting, we consider it apposite to

remind ourselves with the apt observations of a

learned Judge - Vivian Bose, J., which His Lordship

made while dealing with the scope of Order IX in a

leading case of Sangram Singh vs. Election

Tribunal (AIR 1955 SC 425).

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38) The learned Judge speaking for the Bench in

his distinctive style of writing reminded the Courts

to keep the following observations in mind while

deciding the rights of the parties which reads as

under:

“A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

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39) In the light of the foregoing discussion, the

appeal succeeds and is allowed. The judgments of

the Single Judge and Division Bench are set aside.

The appellant's (defendant No.1) application filed

under Order IX Rule 13 of the Code (GA No.

766/2016) is allowed. As a consequence, the ex

parte decree dated 09.02.2015 passed in C.S. No.

15/2014 is set aside. The civil suit is restored to its

original file.

40) Parties to appear before the concerned Court

on 05.03.2018 to enable the Court to decide the

suit. The appellant (defendant No.1) will be granted

an opportunity to file the written statement. The

Court will ensure disposal of the suit on merits in

accordance with law within a year as an outer limit.

41) It was, however, brought to our notice that

during the pendency of this appeal, the appellant

was asked to deposit a sum of Rs.47.50 lakhs which

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they have deposited. Now that the suit is restored

to its original file for its decision on merits, we make

it clear that the deposit and withdrawal of Rs.47.50

lakhs would be subject to the final result of the suit.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi; February 15, 2018

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AUTO CARS Vs TRIMURTI CARGO MOVERS PVT. LTD. .

AUTO CARS Vs TRIMURTI CARGO MOVERS PVT. LTD. .