Calcutta High Court
Apo No.330 Of 1993 vs Tarit Appliances & Equipment Pvt. Ltd ... on 15 September, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE IN THE MATTER OF:
APO No.330 of 1993 TCS 1 of 1989 KOTAK MAHINDRA BANK LTD VERSUS TARIT APPLIANCES & EQUIPMENT PVT. LTD (IN LIQN) APO No.331 of 1993 TC 1 of 1989 KOTAK MAHINDRA BANK LTD VERSUS TARIT APPLIANCES & EQUIPMENT PVT. LTD (IN LIQN) Before:
The Hon'ble Justice JYOTIRMAY BHATTACHARYA AND The Hon'ble Justice ISHAN CHANDRA DAS Date: 15th SEPTEMBER, 2016.
Appearance:
Mr. Jishnu Saha, Sr. Adv.
Mr. Amitava Das, Adv.
Mr. Soumabha Ghosh, Adv.
Mr. Joydeep Guha, Adv.
Mr. Arunabha Sarkar, Adv.
The Court: The plaintiff-appellant filed a suit for recovery of money with a declaration that the suit properties mentioned in Schedule I remain pledged and/or 2 hypothecated and those mentioned in Schedule II remain mortgaged to the plaintiff as security for payment of the plaintiff's claims amongst various other incidental reliefs. Initially, the said suit was filed in Alipore Court. Subsequently, it was transferred to the Original Side of this Court. The plaint was reverified.
After the suit was transferred to this Court, the defendant Nos. 2 and 3 appeared in the suit and contested the plaintiff's application for interim injunction.
The writ of summons was neither taken out by the plaintiff nor delivered to the office of the Sheriff for effecting service thereof upon the defendant Nos. 2 & 3 within the time as prescribed under the Original Side Rules. The suit was ultimately dismissed by the learned Single Judge by applying the provision under Order 7 Rule 11 of the Code of Civil Procedure. The learned Single Judge held that the application for extension of time for taking out the summons was not filed within the period of limitation. According to the learned Single Judge, since no specific period is prescribed for applying for extension of time under the Original Side Rules and/or in the Limitation Act, Article 137 of the Limitation Act will apply. It was further held that since such application for extension of time for taking out the summons was not submitted before the Court within three years as per Article 137 of the Limitation Act, the application cannot be entertained being barred by limitation. Holding as such, the suit was ultimately dismissed under Order 7 Rule 11 of the Code of Civil Procedure. The legality and/or propriety of the said order is under challenge in this appeal.
We have considered the provision under Order 7 Rule 11 of the Code of Civil Procedure. Order 7 Rule 11 of the Code of Civil Procedure provides for rejection of plaint under certain circumstances. Order 7 Rule 11 of the Code of Civil Procedure does 3 not provide for dismissal of the suit. The dismissal of a suit is different from rejection of the plaint. In case of rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure the plaintiff is not precluded from filing a fresh suit on presentation of a fresh plaint subject to limitation. But, in case of dismissal of suit the plaintiff cannot file a fresh suit. Since none of the conditions under which a plaint could have been rejected under Order 7 Rule 11 of the Code of Civil Procedure is attracted in the instant case, we are of the view that the impugned order ought not to have been passed either for dismissal of the suit or for the rejection of the plaint. However, Order 9 Rule 5 of the Code of Civil Procedure provides for dismissal of the suit, if summons are not taken out for effecting service as per the provision prescribed under Civil Procedure Code. But this provision has not been resorted to, for dismissal of the suit, by the learned Single Judge.
However, these are mere academic discussions as we find that the defendant nos.
2 and 3 have already entered appearance in the suit and they contested the plaintiff's application for temporary injunction.
The purpose of service of summons is to make the defendant aware of initiation of such suit against him by the plaintiff and to invite him to appear before the Court, so that he can disclose the defences in the said suit and contest the same. When the defendants have already entered appearance in the suit and contested the interlocutory application taken out in connection with the said suit, the defendants cannot take the plea that they were not aware of the suit. Thus, we hold that when the purpose of service of summons was fulfilled for all practical purposes the suit ought not to have been dismissed on technical grounds for non-service of summons upon those defendants. This conclusion 4 we arrive at by following the well settled principles of law that substantial justice cannot be defeated for procedural lapses.
Accordingly, we set aside the impugned order. Thus, the suit is restored to its original file.
The plaintiff is directed to supply a copy of the plaint upon the learned Advocate on Record of the defendant nos. 2 and 3 within a week. The defendants are permitted to file written statement within two weeks after re-opening of the Court after the ensuing puja vacation before the learned Tribunal.
Having regard to the provision contained in Section 34 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, trial of the suit cannot be continued before this Court. Accordingly, we direct for transmission of the records relating to the suit to the appropriate Bench of the Debts Recovery Tribunal, Kolkata, immediately.
By the common order both the appeals are disposed of.
( JYOTIRMAY BHATTACHARYA, J ) (ISHAN CHANDRA DAS, J ) CS.