Bombay High Court
Air India Ltd vs Caribjet Inc on 4 March, 2019
Author: G. S. Patel
Bench: G.S. Patel
34-NMS459-03.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 4598 OF 2003
IN
SUIT NO. 3228 OF 2001
Air India Ltd ...Plaintif
Versus
Caribjet Inc ...Defendant
Mr Kevic Setalvad, Senior Advocate, with Arun Siwach and
Priyanka Mitra, i/b Cyril Amarchand Mangaldas, for the
Plaintiff.
None for the Defendant
CORAM: G.S. PATEL, J
DATED: 4th March 2019
PC:-
1.The sole Defendant is Caribjet Inc, a company in the West Indies. It faces a claim from Air India Ltd for a decree in the amount of Rs.5 crores, another decree for over Rs.96 crores and a third decree of more than Rs.132 crores. On 14th January 2019, I granted the Defendant further time to file a Written Statement saying this was to be done on or before 8th March 2019 with no possibility of an extension.
Page 1 of 34th March 2019 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:31:11 ::: 34-NMS459-03.DOC
2. It seems that the in the meantime the Advocates for Caribjet, M/s Doijode and Associates, filed a Chamber Order No. 154 of 2019 before the Prothonotary and Senior Master. That Chamber Order was disposed of on 21st February 2019 by ST Kapse, Additional Prothonotary and Senior Master and Additional Registrar (OS).
3. The Chamber Order is, I notice, not one that says only that the Defendant has been unresponsive. To the contrary, it appears that M/s Doijode and Associates have been in correspondence with one Marc Uylenbroeck of Caribjet by e-mail for quite some time, possibly from 2011 and certainly till as recently as 15th January 2019 i.e. after my order of 14th January 2019. My order of that date was specifically communicated in soft copy to Uylenbroeck. Mr Setalvad for the Plaintif points out that it is this very person who filed an Affidavit dated 2nd March 2005 in support of Notice of Motion No. 685 of 2005. Therefore, Caribjet is not only a functioning entity but it has complete notice of these proceedings, including the most recent order.
4. Mr Setalvad correctly points out that the suit will have to be registered in the Commercial Division. Once that is done, a fresh Writ of Summons will have to be issued and then served on Caribjet. The law is now settled including, most recently by an elaborate Judgment of a learned single Judge of this Court in Axis Bank Limited v Mira Gehani & Ors.1 This decision says there is no possibility of an extension of the time to file the written statement in view of the amendments to the Code of Civil Procedure 1908 1 Notice of Motion Commercial Division No. 196 of 2018 in Commercial Suit No. 159 of 2017, order dated 27th February 2019, per SJ Kathawala J.
Page 2 of 34th March 2019 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:31:11 ::: 34-NMS459-03.DOC efected by the Commercial Courts Act. The time period for filing a Written Statement is 120 days from the date of service of the Writ of Summons.
5. This suit has already been pending here for the better part of two decades. I do not see any reason why considerably more time should be spent by Air India in attempting to serve the Writ of Summons through the office of the Bailif in a location as far away as the West Indies. I will allow the Plaintif to serve the Writ of Summons by reputed international couriers such as Blue Dart, DHL and Fedex with proof of acknowledgement, as also in a soft copy by e-mail using the e-mail addresses in the correspondence annexed to the Chamber Order referred to above. For this purpose, the advocates for the Plaintifs are at liberty to inspect the record and obtain an ordinary copy of the Chamber Order No. 154 of 2019 and the Affidavit in Support with all annexures..
6. For the present, list the matter for directions on 29th April 2019.
7. Liberty to the Plaintif to apply if the Writ of Summons is issued earlier.
(G. S. PATEL, J) Page 3 of 3 4th March 2019 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:31:11 :::