Case Name: Auto Cars v. Trimurti Cargo Movers Private Limited
Citation: Civil Appeal No. 2113 of 2018
Decided on 16.02.2018
Supreme Court rules that service of summoning to a defendant without specifically mentioning the day, date, year and time cannot be held as duly served to summon within the scope of Order IX Rule 13 of the Civil Procedure Code.
An appeal was filed in the Supreme Court of India against the final order and judgment of Division Bench of High Court of Calcutta. It had passed an ex-parte order against the appellant confirming the decision of the single judge of High Court. Respondent No.1 in the present case had filed a civil suit for recovery of the amount of 1,43,18,537 rupees against the appellant under the original jurisdiction of Hon’ble High Court.
Amount to be recovered was due some commercial dealings exchanged between the parties in relation to services and supply of goods. The summon from High Court were sent to the appellant’s place of business which was stated in the cause title of the plaint. After delivery to the appellant failed through the ordinary course of service, the respondent with permission of High Court decided to serve the appellant by way of publication under Order 5 Rule 20 of the Code of Civil Procedure. The concerned summon was published in The Times of India, Pune Edition, and Dainik Bhaskar, Aurangabad Edition on 25.11.2014. Defendant failed to appear, as a result, Court decided the matter according to merits and issued an ex-parte decree.
Appellant filed an application on 08.03.2016 under Order 9 Rule 13 requesting the court to set aside the ex-parte decree as no summons were duly served to them and they were totally unaware of the legal proceedings against them. Defendants further contended that their place of business was Aurangabad and summon was published in Pune edition of The Times of India and this was sufficient reason to set aside the ex-parte decree. Single Judge dismissed the application of the appellants. Appellant filed an appeal before Division Bench of High Court which was also rejected.
- Can a summon be held to be duly served in absence of specified a date, day, time and year?
- Does the word time under Rule 5 Order 20 (3) include date, day, time and year?
Supreme Court in the very beginning of the case allowed the application of appellant under Rule 9 Order 13 and set-aside the ex-parte order passed against them. Furthermore, Supreme Court also stated that under section 27 of the Code of Civil Procedure, Court is required to mention a specific day, date, year and time for the defendant’s appearance. This requirement cannot be done away with even if service is issued through publication under Order 5 Rule 20(3) by the orders of the Court. Moreover, Court said that word time under the said rule has to be read with section 27 and includes day, date, year and time.
From this decision, we learn that summons should include a fixed date, day, year and time for it to be valid in the eyes of law. It is a compulsory requirement and not an empty formality. A mere statement saying that defendant should present himself before the Registrar of Court within 15 days from the date of service is not valid and will not stand in court.