Atlas Shipping Services Pvt Ltd vs Repro India Ltd
2021 Latest Caselaw 9798 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION

           INTERIM APPLICATION (L) NO. 7243 OF 2021
                        ALONG WITH
            SUMMONS FOR JUDGMENT NO. 35 OF 2021
                            IN
         COMMERCIAL SUMMARY SUIT (L) NO. 4202 OF 2021


 Atlas Shipping Services Pvt. Ltd.                    ...      Applicant

          v/s.

 Repro India Ltd.                                     ...        Defendant


 Mr. Amrut Joshi a/w. Smita Durve i/b. Arshil Shah for the
 plaintiffs/applicant.
 Mr. Gauraj Shah i/b. Sakshi Bhalla for the defendant.

                           CORAM: DAMA SESHADRI NAIDU, J.

27th July 2021 P.C.

The plaintiff filed the Suit in February 2021. Served with the summons, the defendant entered an appearance in June 2021. Then, the plaintiff took out Summons for Judgment. The defendant not only filed a reply but also sought the Court's leave to defend. But unfortunately, until now, the Suit continued at the lodging stage.

2. Today, to argue against the summons for judgment and the

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leave to defend, the defendant's counsel pointed out, in his words, the plaintiff's non-compliance with the statutory mandate under Rule 2 of Order 37 in the plaint. Then, the plaintiff's counsel drew my attention to the plaint. The plaint, at places, especially in para 28, contained corrections in hand. Those corrections are said to be in partial compliance with the Registry's objections.

3. That apart, the plaintiff's counsel has drawn my attention to a particular objection of the Registry. That objection concerns the legibility of documents. In this context, the plaintiff's counsel points out that the plaintiff has already filed a fresh set of legible documents-- though all are copies. To justify why the plaintiff has filed copies rather than the originals, the learned counsel submits that it is the plaintiff's case that some of the originals are with the defendant.

4. On the other hand, the defendant's counsel insists that the plaintiff must have carried out the corrections only based on the objections he raised on the last occasion when the matter was heard in part--on the defects in the plaint.

5. At any rate, I am not happy with the state of affairs. It is better if no further steps in the suit are taken at the "lodging (L)" stage. In practice, our eagerness to proceed with the matter at the lodging itself produces, regrettably, certain unintended consequences. Here, the plaintiff's counsel argues that the plaintiff corrected the plaint to remove the office objections. The defendant's counsel, on the contrary,

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asserts that it was based on his arguments to non-suit the plaintiff, for the plaint, according to him, had suffered from fatal flaws.

6. Incidentally, in this suit the defendant entered an appearance on his own without service of summons; so the requirement of service stood waived.

7. At the lodging stage, there could usually be no judicial cognizance of the Suit; therefore, it is inadvisable to put the other party on notice and take further steps affecting the case's merits. Sometimes, a contrary course may prejudice either party. Given the urgency in the matter, if the Court is inclined to proceed with the matter at the lodging stage, the Court meets the ends of justice if it applies its mind and records why it has allowed the suitor to proceed further.

8. Under these circumstances, I adjourn the matter by two weeks. Unless the plaintiff cures all the defects the Registry has pointed out and the matter is numbered, the Registry will not list the case at the lodging stage for further consideration on the merits.

9. It is entirely up to the plaintiff to convince the Registry about the legibility of documents and the desirability of having a substituted set of documents at the numbering stage. The defendant may not have any role to play at this stage. That said, once the suit is numbered and taken up by the Court to decide the summons for judgment and the leave to defend, it is open for the defendant to take all pleas legally permissible to it on the merits.

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            List the matter when the suit is numbered.




                                       (DAMA SESHADRI NAIDU, J)

 Lata Panjwani, P.S.