Annexures, Documents Necessary Components of Plaint; Must Be Supplied In Serving Summons Under Order XXXVII Rule 3(1): Gujarat High Court

The Bench comprising Justice N.V. Anjaria and Justice Samir J. Dave upheld this in connection with a Special Civil Application challenging the rejection of the Applicant's leave to defend on grounds of delay.

Background

Plaintiff-Respondent had instituted a summary suit against the Petitioner-Defendant for recovery of INR 8,38,626/- with interest since the Petitioner ('Applicant') had approached the Plaintiff for purchase of Redimix Concrete material for its project. It was the case of Plaintiff that delivery was made as per the order but the Applicant had failed to make payments as per the invoice.

It was contested by the Applicant that the Plaintiff did not provide a list of documents or other documents forming part of the plaint referred to in the suit. Further, it did not serve the summons for judgement on the Applicant within ten days of the Applicant's appearance in the suit. Thereafter, the Plaintiff filed summons under Order XXXVII Rule 3(4) of CPC. The Applicant requested an extension of time to file leave to defend since requisite documents were not available. The documents were received two months later due to which the Applicant's leave to defend was rejected which was now being challenged before the High Court in the instant case.

The primary submission of the Applicant was that it was erroneous in law to file an application for summons without necessary documents which formed part of the plaint. Per the Applicant, the Court below had disregarded Order XXXVII Rule 2(1) of CPC, which states that documents are required to be supplied by Plaintiff on the date when Defendant enters appearance.

Per contra, the Plaintiff contested that the preliminary objections cannot be raised in a Special Civil Application while relying on Zubedaben Mohammedmiya Vs. Gujarat State Wakf Board [Special Civil Application C/SCA/15878/2021]. A further averment was that per the Madras HC judgement in Shivsu Canadian Clear International Limited, Shivsu Towers Vs. Freightcan Global Logistics Private Limited, [2013 (2) Madras Weekly Notes (Civil) 160] once the application to defend the suit was dismissed, it could be challenged under Section 115 of CPC or by filing petition under Art 227.

Judgement

The foremost observation of the Bench was that since the suit was a summary suit, all the provisions laid down in Order XXXVII of CPC would be applied. Further, Rule 3 of Order XXXVII was particularly relevant for the appearance of the defendant and while noting this provision, the Bench averred that the Plaintiff is entitled to all necessary documents, annexures and the copy of the plaint in the summons. The Courts can grant leave to defend to the defendant either unconditionally or with certain terms per the Court. However, if the leave to defend was not applied or if it is rejected, the Plaintiff is entitled to the judgement. The Bench remarked:

"Therefore making available the annexures to the defendant together with the plaint while serving summons in the summary suit, cannot be said to be an empty formality. It has the bearing on substantive right of the defendant to seek leave to defend and to contend before the court by filing leave to defend application that he has strong defence and triable issues arises in the controversy. It is after the requirement of serving the summons alongwith plaint and annexures that the future course of summary suit would be decided. There cannot be due service of summons unless the plaint is sought to be together with the annexures."

In the instant case, it was not disputed that Plaintiff had not supplied annexures in the plaint. Due to this failure to furnish annexures, time had elapsed and there was delay in filing leave to defend application and therefore, the delay ought to have been condoned by the Court. Accordingly, the Bench granted leave to defend as per Rule 3 and allowed the Application.

Case Title: Yogi Infrastructure Private Limited v. RMC Redimix (India), Subsidiary Of Prism Cement Ltd.