Ajoy Nath Ray, J.:—There are two applications before me, one of which is made on the part of the State Bank of India made by way of Judge's Summons dated 21st July, 1992 wherein a prayer is made for an appropriate order be made extending the time for issuance of the writ of summons as also or taking out and delivering the same to the Sheriffs' Office for service upon the defendants.
2. The second application is made by the two guarantor-defendants in the suit being defendants Nos. 2 and 3 who pray for taking the plaint off the file and a consequent dismissal of the suit. This prayer Mr. Mukherjee has pressed on behalf of his two clients, namely, the defendants No. 2 and 3 so that the suit, even if dismissed, will have to be dismissed only as against these two defendants and not as against any others.
3. Mr. Mukherjee appearing for the two defendants has pressed certain technical points which, in my opinion, deserve serious consideration.
4. Mr. Mukherjee has submitted that the only way of enforcing appearance and attendance of a defendant in a suit is by way of service of an appropriate writ of summons upon that defendant. He is right. A defendant can of course waive his rights regarding service of the writ of summons, and upon such waiver, can on his own appear before the Court and contest the suit. But a defendant is not compelled to waive such a right. He might insist that he shall be served in accordance with law with the writ of summons, and if not so served, he can press for dismissal of the suit, because no appropriate notice as against him has been issued or served.
5. In an application, as opposed to a suit, the respondent is called upon to appear by way of a Notice of Motion, of a Master's Summons or a Judge's Summons. In case such notice is not served, and in case the right to be served with such a notice is not waived, the respondent can always press for dismissal of the application. In a similar mariner, a defendant can press for dismissal of a suit if the writ of Summons is left unserved.
6. Mr. Mukherjee has stated that Order IX Rules 1 and 2 provide for the date for appearance on the basis of a writ of summons. He has submitted that the 5th Rule of the said Order provides for the steps that are to be taken by the plaintiff in case a writ bf summons has been issued but has been returned unserved. The said three rules of Order IX are set out below:
“1. On the day fixed in the summons for the defendant to appear and answer the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.
2. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service or to present copies of the plaint or consise statements, as required by rule 9 of Order VII the Court may make an order that the suit be dismissed:
5. (1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that—
(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or
(b) such defendant is avoiding service or process, or
(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.”
7. Mr. Mukherjee has said that in the instant matter the first defendant being the company concerned went into liquidation by virtue of an order of winding up passed on the 6th of March, 1988. In spite thereof, the Bank filed the suit against the company (in liquidation), the two clients of Mr. Mukherjee, and another on 4th of May, 1989 but obtained leave under s. 446 of the Companies Act a day later i.e on the 5th of May, 1989.
8. Mr. Mukherjee has drawn my attention to the petition of the Bank wherein it has been averred that the records of the suit have been duly transferred to this Court pursuant to the aforesaid leave and that the plaint was reverified on or about 31st May, 1989. Mr. Mukherjee also pointed out the 9th Paragraph of the petition of the Bank and submitted that the same is the only ground for obtaining of extension of time by the Bank, if ground it can be called at all. The said 9th Paragraph is set out below:
“9. Unfortunately, however, the requisite writs of summons have not been issued till date nor has any writ of summons been lodged with taken out and delivered to the Sheriff for service upon the defendants.”
9. It is quite clear that the above contains no explanation whatsoever. Mr. Mukherjee has rightly contended that if his clients had not applied first, the plaintiff would have further continued to sleep upon the matter.
10. Mr. Mukherjee has relied upon two authorities of this court—one of the Division Bench and one of a learned Single Judge for showing that laches in regard to service of writ of summons might result in the plaintiff suffering the prejudice of a dismissal of his suit altogether. Mr. Mukherjee referred to the Division Bench judgment in the case of Electrical Industries Corporation, reported in AIR 1979 Cal 8. That was a case where the writ of summons had been taken out and lodged with the Sheriff but there was no appropriate follow, up in regard to the effecting of service thereof. The suit in that case had been once dismissed and restored and thereafter an application for issuance of a fresh writ of summons was dismissed by the learned Trial Judge because of the non-compliance with the requisites as mentioned in order 9 rule 5 of the Code of Civil Procedure. Such dismissal was upheld by the Appeal Court. This meant in the result that the suit effectively got dismissed or remained stayed permanently because without issuance of a fresh writ of summons the defendant could never be compelled to appear, and thus the suit could never be heard again.
11. The second case of Mr. Mukherjee was that of Fort Gloster Industries' reported in 91 CWN 391 wherein again the issuance of fresh summons was refused by Justice Ajit Kumar Sengupta as His Lordship came to the conclusion that the delay between the filing of the suit in 1977 and the date of the application before His Lordship in 1986 did not deserve to be condoned.
12. Mr. Mukherjee has placed before me our Original Side rules, regarding the issuance of writ of summons and the lodgment thereof in the Sheriff's Office, which are followed in this Court. These rules are rules 6, 7 and 8 of Chapter VIII on the Original Side and these rules are quoted below:
“6. Except as hereinafter provided every writ of summons shall be taken out and delivered to the sheriff, for service within the local limits of the jurisdiction of this Court, or for transmission for service elsewhere. A writ of Summons in Form No. 2 shall have annexed hereto a copy of the plaint and of every document, sued on, a copy of which is filed therewith. Unless an extention of time is obtained, it shall be taken out and delivered to the Sheriff within 14 days from the filing of the plaint or the date of the order of amendment.
7. Unless otherwise ordered, no summons shall be received by the Sheriff for service or transmission, after the expiration of the days mentioned in rules 6 and 8.
8. Where, upon the further amendment of any summons to appear and answer, the Registrar or Master shall be of opinion that a fresh summons shall be prepared, and, upon payment of the usual fees, taken out, and, within 14 days from the date of the order; delivered to the Sheriff for service.”
13. The practice that prevails in this Court is that immediately upon acceptance of a plaint by a Judge or the department of this Court, the learned Registrar, being activated and assisted in that matter by the solicitor or advocate-on-record of the plaintiff, issues the writ of summons in that suit signing the writ in the name of the President of India. More often than not, it is some subordinate officer authorised in that behalf who signs the writ for the Registrar, rather than the Registrar himself. The Master is one such officer. Also, at the time of taking out of the writs, second copies might be caused to be served by the plaintiff by registered post from the High Court Registry. The lodgement of the writ in the office of the Sheriff is undertaken by the solicitor, by whatever name called.
14. There is no specific rule which lays down any time limit for taking out of the summons from the Registry but the only time limit is that of lodgment in the office of the Sheriff, which must be within 14 days from the filing of the plaint. The summons must naturally, therefore, be taken out within that period. Unless it is so taken out, it cannot obviously be lodged in time.
15. In the instant case no officer of any Court, whether of the departments at Alipore or on the Original Side of this Court, has put his pen to any writ of summons yet. None has been approached by anybody oft behalf of the plaintiff yet. The position has remained thus in spite of the transfer of the suit about a year after its filing in Alipore and the reverification thereof more than three years prior to the taking out of the application by the Bank. Mr. Mukherjee submits that the residuary article of the Limitation Act would apply in this case and the Bank cannot either take out the summons from the registry or lodge it in the sheriff's office because an application for either of these two reliefs would today be barred. These would be so barred, if three years are calculated either from the date of the filing of the suit which is 4th May, 1989 or even the date of the reverification of the plaint after transfer thereof to this Court which according to the Bank is 31st of May, 1989. The Bank's application was made in July ′92, after the two defendants prayed for dismissal of the suit in their application made in June ′92.
16. Mr. Mitra has submitted that a suit cannot be dismissed excepting under a particular power or provision enabling such a dismissal. He has submitted that there exists no such power for dismissal of a suit on the grounds urged by Mr. Mukherjee. He has further relied upon Chapter XXXVIII rule 46 of the Miscellaneous Rules on the Original Side. The said rule 46 is set out below:—
“46. The Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed.”
17. Such a general power is not special to the High Court as under the Code of Civil Procedure also such a general power vests in Civil Courts as provided for in s. 149 of the Code of Civil Procedure.
18. I am unable, therefore, to accept Mr. Mitra's submission that in matters of this nature, where time is limited or prescribed by the rules of our High Court, the Limitation Act does not have any application whatsoever. It is now well settled that the Limitation Act is not necessarily limited in its application only to those applications made under the Code of Civil Procedure. Nor can the Limitation Act be made inapplicable on the ground urged by Mr. Mitra, that the right to take out a writ of summons continues from day to day for ever after filing of the suit. This is not a right which continues from day to day afresh. The right to take out a writ arose immediately upon presentation of the plaint or reverification thereof and an application for extension of time for enforcement of that right must be taken out within three years after its lapse, i.e, within three years after lapse of 14 days from the expiry of 31.5.89 Indeed on every day during those three years the right remained alive, but after the lapse of the three years the Limitation Act would intervene and without condonation of delay the application for such issuance of a fresh writ could be barred by time.
19. That the general power to extend time exists is indisputable. The same can co-exist with a period of limitation also. The writ of summons is to be got issued and lodged within 14 days from the filing of the plaint. One can conceive of many such applications for extension of time made on dates which occur after those 14 days but prior to the lapse of three years therefrom. In my opinion, therefore, the general power under Chapter XXXVIII rule 46 cannot be used or invoked so as to get rid of the bar of limitation altogether.
20. Mr. Mitra submitted on the authority of a learned Single Judge of the Allahabad High Court in the case of Sri Nath Agarwal, reported in AIR 1981 All 400 that if the defendants have knowledge of the suit aliunde, and have taken part in interlocutory applications, then they cannot ask for dismissal of the suit in any event. Mr. Mitra urged on this basis that the defendants would in that event must be taken to have waived their rights as to the service of writ of summons.
21. Interlocutory proceedings in this suit there certainly were. Admittedly injunctions have been passed, which were confirmed in relation to property which did not form the security of the Bank but which were the alleged personal property of the defendants 2 and 3. The said defendants appeared in these interlocutory proceeding also. But nowhere from the records can anything be spelt out wherefrom it can be held that these defendants or any of them waived their rights to be served with the writ of summons in the suit in due course. The deliberate relinquishment of the known right of their must be spelt out from some action or statement of the defendants themselves and those actions and/or statements are wholly absent herein.
22. I am aware that the success of the two defendants in these applications would mean their success in the suit. It would also mean that the plaintiff Bank would for ever be barred from looking to these defendants for satisfaction of their claims. However, the court is not free to write a different Code of Civil Procedure or a different set of High Court Rules or a different Act of Limitation than those that prevail for determination of the rights and liabilities of any of the litigants in this country, be they public bodies or private individuals. I am not free to view with any particular laxity the situation that prevails to day because by doing so I might perhaps be saving the claim of a Bank against alleged guarantors. If the law clearly indicate one way, and the rights, whatever the consequence might be.
23. It has been submitted that the property of the company (in liquidation) has been sold for Rs. 11 lakh; that the Bank did not prefer an appeal from the sale; that Mr. Mukherjee's clients preferred an appeal from the sale complaining of the low price and that the appeal is still pending. It is also submitted that in respect of one of the personal property of the guarantors there has been an alleged lease in favour of the guarantor's son and that a suit in Alipore is pending challenging such lease as a fraudulent transfer of property. It is also said by the Bank that the guarantors have no defence. The guarantors on the other hand say that the guarantees have stood discharged, inter alia, because other Guarantors have been released without consultation with them, and that in any event the guarantees are wholly unenforceable. The orders passed in interlocutory proceedings, and these submissions relating to the merits of the suit are not of any very great relevance before me, because here a point of procedure has been urged by Mr. Mukherjee and in my opinion, urged successfully.
24. The application of the plaintiff Bank by way of Judge's Summons dated 21st July, 1992 shall be dismissed. Since the writ of summons can hereafter never be served upon the second or the third defendant their application succeeds and the suit as against those two defendants shall stand dismissed and struck out. This will be treated as a dismissal, or a taking of the plaint off the file, under Order 7 rule 11 of the Code of Civil Procedure because I have held the suit to be today barred as against the two applicant defendants. There appearance in the suit can hereafter never be enforced.
25. The interim orders passed in this suit will hereafter be of no effect as against the defendants 2 and 3, and shall thus stand vacated as against them.
26. Stay of operation of this order is prayed for but the same is refused.
27. All parties and others concerned to act on a signed copy of this dictated order on the usual undertaking.
Application of Bank dismissed; application of defendants No. 2 & 3 succeeds.
J.N.H
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