CRP/2746/2023 of M/S.N.COAT Vs State Bank of India on 13 October 2026

Order

This Civil Revision Petition has been filed challenging the docket order dated 13.06.2023 passed in OS No.8156 of 2022 on the file of the learned VII Additional City Civil Court, Chennai.

2. Heard the learned counsel for the petitioners and carefully perused the materials available on record as well as the order passed by the Court below. Though the notice has been served on the respondent and the name of respondent has also been printed in the cause list, there is no appearance either in person or through counsel on behalf of respondent.

3. The respondent bank filed a suit in OS No.8156 of 2022 seeking for the relief of recovery of money along with interest. Private summons were permitted and served on the petitioners /defendants. Insofar as the 2nd defendant is concerned, she was called absent and set ex-parte on 22.02.2023. Insofar as the 1st defendant is concerned, substituted service was ordered. Ultimately, on 06.03.2023, a vakalat was filed on behalf of the 1st defendant. An application was filed on behalf of the 2nd defendant to set aside the exparte order in IA No.1 of 2023 and the said interlocutory application was allowed on 13.04.2023 and the defendants were directed to file their written statement. The matter was thereafter listed on 13.06.2023.

4. When the matter was taken up for hearing on 13.06.2023, the following order came to be passed by the Court below:-

“Under order 37 the defendant has not given notice of appearance for D1 within 10 days from 06.03.2023. Further for D2, notice of appearance not filed within 10 days from 13.04.2023. Hence, the argument advanced by the plaintiff counsel is accepted. The argument advanced by defendant counsel that Order 37 Rule 1 not complied is also taken for consideration Ex.A1 to Ex.A5 marked. For orders call on 14.06.2023.”

5. Aggrieved by the said order, the present Civil Revision Petition has been filed before this Court.

6. The main ground that was urged on the side of the petitioners is that the summons were not served on them along with the plaint, as contemplated under Order XXXVII of CPC. Hence, the suit was prosecuted as a regular suit which is evident from the fact that the Court below had directed the defendants to file their written statement on 13.04.2023 without insisting on an application seeking leave to defend the suit.

7. The Court below, on its own, passed an order dated 13.06.2023 without realising that summons under Order XXXVII along with annexure had never been served on the petitioners, which is mandatory. The Court below ought to have first satisfied itself on fulfilling of the said requirements and without doing so, the docket order has been passed on 13.06.2023.

8. Useful reference can be made to the judgement of this Court in [Jivaraj Motilal v.Marthaka Plastic Industries and others] reported in 1985 SCC online Madras 117 and the relevant portion is extracted hereunder:-

7. Whether the filing of a vakalat on 17th April, 1979 on behalf of the respondents would make any difference has next to be considered. Here again, it is difficult to accept the stand taken by the respondents to the effect that the vakalat had been filed only in the proceedings taken out by the petitioner for securing an order of attachment before judgment, for, it is seen from a reference to the vakalat that it had been filed in the main suit and not only in the interlocutory application for an order of attachment before judgment. The vakalat has not been merely put into the court. Earlier, the filing of the application by the petitioner for securing an order of attachment before judgment has been referred to. It is in response to a notice served in that application, on 12th April, 1979, counsel undertook to appear on behalf of the respondents and finally filed the vakalat in the suit on behalf of the respondents on 17th April, 1979 and thereafter a counter as well as an affidavit of undertaking had been filed on behalf of the respondents by the same counsel and on 20th April, 1979 after recording the undertaking, the application for attachment before judgment was closed. Though, ordinarily, counsel enter appearance only after service of summons, yet, in this case, such appearance had been entered even prior to the service of summons. In other words, even before the stage contemplated by O. 37, R. 3(1), C.P.C. had been completed, the defendants in the suit had entered appearance through counsel to the knowledge of the petitioner and the vakalat had contained an address for service of notice on the respondents. Under O. 37, R. 3(2), C.P.C., if the notice required to be served on the respondents had been left at the address of the counsel given in the vakalat, that would be sufficient. No doubt, O. 37, R. 3(3), C.P.C. contemplates notice of appearance being given by the defendant to the plaintiff's pleader on the day when the defendant enters appearance. But, on the facts and circumstances of this case, it appears to me that that was not necessary because the vakalat on behalf of the respondents had been filed in the suit itself to the knowledge of the petitioner as well as his counsel and an address for service had also been indicated in the vakalat filed by the respondents and that would be more than sufficient notice of appearance by the defendants. Therefore, it can be taken that the respondents had entered appearance even prior to the expiry of ten days of the service of summons and had also given notice of appearance to the petitioner. Even so, there has been a failure on the part of the petitioner to take the further steps prescribed under O. 37, R. 3(4), C.P.C. There is no dispute that after the respondents entered appearance through counsel on 17th April, 1979 there had been no service on them of a summons for judgment in Form 4-A in Appendix B. It is also not in dispute that the other requirements of O. 37, R. 3(4), C.P.C. were not complied with. Only upon compliance with the requirements of O. 37, R. 3(4), C.P.C., and the service of summons for judgment, defendant can make an application for leave to defend the suit as provided under Art. 118 of the Limitation Act, 1963 which may either be granted or not granted and the other consequences referable to the same would follow only thereafter. Therefore, in this case, there has been a non- compliance with O. 37, R. 3(4), C.P.C. by the petitioner and the petitioner cannot take advantage of bis own default and claim that the decree passed as a consequence thereof should be maintained. Thus even construing the filing of the vakalat on behalf of the respondents on 17th April, 1979 which contained the name of the counsel as well as an address for service to the knowledge of the counsel for the petitioner as sufficient compliance with O. 37, Rr. 3(1) to (3), C.P.C., there has been a non compliance with O. 37, R. 3(4), C.P.C. and it is only on account of this that the respondents had not been able to apply for and obtain leave and that had resulted in a decree being passed against the respondents under O. 37, R. 6(a), C.P.C. Thus, on a careful consideration of the relevant provisions in the light of the facts in this case, it is clear that there has been substantial violation of the provisions of O. 37, R. 3(4), C.P.C. and that has resulted in the passing of the decree against the respondents without their having been given ah opportunity to apply for leave to defend the suit and, therefore, the decree passed against them suffered from this procedural irregularity and deserved to be set aside. The court below was, therefore, quiet right in having set aside the decree passed against the respondents.

9. Reference can also be made to the order passed in CRP PD No.468 of 2018 dated 16.12.2020. The relevant portions are extracted hereunder:-

6. Therefore, according to the learned counsel, when there is a proper service of notice, the Trial Court ought not to have converted the suit into an ordinary suit. The provisions of Order 37 have to be strictly complied with. Order 37 Rule 2 stipulates that the summons in the suit shall form 4 and Order 37 Rule 3(i) provides that along with summons the plaintiff shall serve on the defendant, a copy of the plaint and the annexures there to. Therefore, mere service of summons in Form 4 is insufficient. The plaintiff will have to serve the copy of the plaint and the documents filed along with the plaint on the defendants. Unless such service is completed, the suit cannot be proceeded under Order 37 of code. I have perused the records.

7. The Court has ordered fresh notice on 04.08.2017. Batta has been paid by the plaintiff on 10.08.2017 in time. But the Court summons were served by affixture. As regards the service by post, it is seen that the copy of the summons, alone has been sent. The copy of the plaint and the documents were not sent . From the affidavit of service filed by the learned counsel for the plaintiff before the Trial Court on 13.09.2017, it is seen that plaint and the documents were not enclosed even along with the private notice. Therefore, there is a non-compliance with the provisions of Order 37 Rule 3 of the Code. Though the Trial Court has given a wrong reason to the effect that the learned counsel for the plaintiff has not taken steps, the fact remains that the 4 th defendant was not served with this plaint and the copies of the documents filed, when the summons were attempted to be served on him. There is a failure to comply with mandatory requirements of Order 37 Rule 3 of C.P.C.

10. Even if the suit had been prosecuted as a regular suit, the suit could have been disposed of by now. However, the suit has been pending for the past four years without any progress.

11. In the light of the above discussion, the docket order passed by the Court below dated 13.06.2023 is hereby set-aside. The petitioners are directed to file their written statement within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed. 13-10-2026 Index: Yes Speaking Neutral Citation: Yes RKA To, VII Additional City Civil Court, Chennai.

N.ANAND VENKATESH J. RKA CRP No. 2746 of 2023 AND CMP NO. 16938 OF 2023 13-10-2026