Calcutta High Court
Msc Mediterranean Shipping Company S. ... vs Ntc Industries Limited on 25 November, 2025
Author: Aniruddha Roy
Bench: Aniruddha Roy
In The High Court at Calcutta
Ordinary Original Civil Jurisdiction
[Commercial Division]
Original Side
Present: The Hon'ble Justice Aniruddha Roy
IA NO. GA-COM/3/2025
In CS-COM/749/2024
MSC MEDITERRANEAN SHIPPING COMPANY S. A. AND ANR.
VS
NTC INDUSTRIES LIMITED
For plaintiffs: Mr. Krishnaraj Thaker, Sr. Adv.
Ms. Sneha Singhania, Adv.
Ms. Sreenita Thaker, Adv.
For defendant: Mr. Shuvasish Sengupta, Adv.
Mr. Balarko Sen, Adv.
Reserved on : 18.11.2025
Judgment on: 25.11.2025
ANIRUDDHA ROY, J.:
In Re: IA NO. GA-COM/3/2025
Facts:
1. The master summons has been taken out by the defendant, inter
alia, praying for direction upon the concerned department to accept the
written statement by extending the time. The plaintiffs have filed the
suit in the commercial division for recovery of alleged demurrage
charges allegedly for a sum of Rs.2,03,42,338.50/- against the
defendant along with other consequential reliefs.
2. From the statements made in the supporting affidavit it appears
that the defendant has contended that the writ of summons along with
the plaint appended thereto was received by the defendant on
November 22, 2024 wherefrom it appears to the defendant that the
plaint was presented on August 13, 2024.
3. It was specified in the writ of summons that within 120 days from
the date of service of writ of summons, the defendant was to file its
written statement. The defendant's case in its supporting affidavit is
that the writ of summons has been received by it on November 22,
2024 and the written statement was ultimately affirmed within 120
days therefrom, as provided under the amended provision of Rule 1 (a)
of Order VIII of the Code of Civil Procedure, 1908 (for short CPC).
4. The grounds shown for not filing the written statement within the
mandated 30 days under the amended provisions of Rule 1 to Order VIII
of CPC are mentioned in the supporting affidavit and on the basis
thereof, the instant application has been filed.
5. The parties have filed and exchanged their respective affidavits on
the application.
Submissions:
6. Mr. Shuvasish Sengupta, learned counsel appearing for the
defendant during his submissions referring to the averments made in
sub-paragraph (f) to paragraph 3 of the affidavit-in-reply filed by the
defendant submits that the plaintiffs contend that the report of the
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office of the Deputy Sheriff dated February 10, 2025 annexed to the
affidavit of the plaintiffs shows that a postal service of writ of summons
through speed post with acknowledgement due (A/D) had been effected
but the report does not include any document which would suggest that
the concerned department of the Deputy Sheriff had served the writ of
summons by post and the same was duly received by the defendant on
November 14, 2024. However, further the second part of the said report
did not indicate that whether any postal acknowledgment receipt has
been received by the office of the Deputy Sheriff. Learned counsel Mr.
Shuvasish Sengupta submits that neither the directors nor the
principal officer or any authorized person of the defendant had been
served with the writ of summons along with the plaint and other
documents on November 14, 2024.
7. Mr. Shuvasish Sengupta, learned counsel for the defendant then
refers to the provisions laid down under Order XXIX from CPC, which
deals with suit by or against corporation. Referring to sub-Rule (2) to
Order XXIX of CPC, Mr. Shuvasish Sengupta submits that the law
provides a specific provision that subject to any statutory provision
regulating service of process, where suit is against a
corporation/company, summons may by served on the secretary or any
director, or other principal officer of the corporation/company or by
leaving it or sending it by post addressed to the corporation/company at
its registered office, or if there is no registered office then at the place
where the corporation/company carries on business. He submits that
on November 14, 2024, from the report of the office of the Deputy
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Sheriff, it appears that even if the writ of summons was served through
post at the registered office of the company but the same was not
delivered to or accepted by the secretary or any director or any other
principal officer of the company and, therefore, there was no valid
service of writ of summons on the company.
8. Relying upon the report of the office of the Deputy Sheriff annexure-
A at page 7 of the affidavit-in-opposition filed by the plaintiffs, Mr.
Shuvasish Sengupta further submits that the report shows hand
service of the writ of summons through the office of the learned District
Court, Barasat was effected on the defendant on November 22, 2024
and the report further shows that the same was served upon a principal
officer of the company. Therefore, when the writ of summon was served
on November 22, 2024 as would be evident from the Deputy Sheriff's
report on the principal officer of the company, the said date being
November, 22, 2024 should be taken and accepted as the valid service
of writ of summons upon the company and in that event the application
has been filed and the written statement was affirmed within the
mandated 120 days from the service of writ of summons as provided
under amended provision of Rule 1 to Order VIII of CPC.
9. Mr. Shuvasish Sengupta, learned counsel submits that when the
writ of summons has been served upon the principal officer of the
company, this is the valid service of writ of summons which was served
on the principal officer of the company on November 22, 2024 in strict
compliance of the provision laid down under Order XXIX of CPC and the
stipulated mandated time frame of 30 days and also 120 days under the
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amended provisions of Order VIII Rule 1 of CPC shall reckon from that
date. In support, he has relied upon the following decisions :
(i) In the matter of: M/s Shalimar Rope Works Ltd. vs. M/s. Abdul
Hussain H. M. Hasanbhai Rassiwala and Others reported at (1980)
3 SCC 595;
(ii) In the matter of: S.V. Enterprises vs. Welkin Auto Pvt. Ltd.
reported at 2020 SCC OnLine Cal 646;
(iii) In the matter of: Pravinchandra s/o Dhanjibhaikotak vs. Murli
Agro Products Ltd. reported at 2005 (4) Mh. L. J. 156.
10. In the light of the above, referring to the explanations and grounds
mentioned in the supporting affidavit, Mr. Shuvasish Sengupta, learned
counsel for the defendant submits that the written statement has been
affirmed and the application has been filed for extension of time beyond
the mandated 30 days but within the mandated 120 days and upon
accepting the causes shown in the supporting affidavit, the defendant
should be permitted to file its written statement.
11. Learned Senior Counsel Mr. Krishnaraj Thaker appearing for the
plaintiffs, while opposing the instant application submits that the
plaintiffs have obtained a service report from the office of the Deputy
Sheriff, annexure-A at page 7 to the affidavit-in-opposition. The report
dated February 10, 2025 reveals that the writ of summons along with
a copy of the plaint was served on the defendant through speed post on
November 14, 2025 and by hand on November 22, 2024. As the writ
of summons was received by the defendant on November 14, 2024, the
mandated time limit of 30 days under Order VIII Rule 1 of CPC to file
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written statement expired on December 13, 2024 and the extendable
mandated time limit of 120 days expired on March 13, 2025. The
defendant's Advocate-on-record has entered appearance and filed
Vokalatnama on March 20, 2025. The instant application has filed on
March 20, 2025, which is beyond the mandated 120 days.
12. Mr. Krishnaraj Thaker learned Senior Counsel then submits that
the defendant has suppressed that it had received the writ of summons
by Post on November 14, 2024. The defendant while applying before
this Court praying for extension of time for filing written statement has
not disclosed the said fact deliberately and willfully. This is a willful
suppression of fact on the part of the defendant.
13. Mr. Krishnaraj Thaker learned Senior Counsel then refers to the
provisions laid down in Rule 2 to Order XXIX of CPC and submits that
the language of the rule clearly shows that the writ of summons may be
served on the secretary or any director or other principal officer of the
corporation/ company or by leaving it or sending it by post addressed to
the corporation at the registered office. Reading of the provisions makes
it clear that, the provisions are disjunctive. He submits that either the
writ of summons may be served on the designated persons as provided
under sub-Rule (a) to Rule-2 or inter alia, sending it by post addressed
to the corporation at the registered office, as in the instant case, in
terms of sub-Rule (b) to Rule 2 of Order XXIX of CPC.
14. The report of the Deputy Sheriff shows that the writ of summons
was served on November 14, 2024 at the registered office of the
defendant by speed post with A/D. Therefore, the mandated 120 days
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outer limit for filing written statement had expired on March 13, 2025
whereas the defendant had filed the instant application on March 20,
2025.
15. While dealing with the judgment of the Hon'ble Supreme Court In
the matter of : M/s Shalimar Rope Works Ltd. (supra) Mr.
Krishnaraj Thaker submits that the law laid down therein supports the
case of the plaintiffs that sending a summon by post to the registered
office of the company, unless the contrary is shown, will be presumed to
be service on the company itself.
16. While dealing with the judgment In the matter of: Pravinchandra
s/o Dhanjibhaikotak (supra) Mr. Krishnaraj Thaker submits that the
case there was with regard to handing over a summons to an employee
of the corporation/company, who was not authorized to receive the
summon would not make the service valid, but in the instant case, the
summon was first served upon the company by post at its registered
office, which is in strict compliance of Order XXIX Rule 2(b) of CPC.
Therefore, the ratio decided in the said judgment has no application in
the facts of the instant case.
17. He submits that In the matter of: S.V. Enterprises (supra), a
wrong address was mentioned by the plaintiffs in the plaint insofar as
the registered office of the defendant was concerned, where the writ of
summons was served. Accordingly, the Co-ordinate Bench held this was
not a valid service of writ of summons upon the defendant, as the
summons was not served at the correct address of the defendant.
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Therefore, the ratio laid down in the said judgment has no application
in the facts of the case.
18. Accordingly, Mr. Krishnaraj Thaker submits that there is no merit in
the application and same should be dismissed.
Decision:
19. After hearing the rival contentions of the parties and upon perusal
of the materials on record, at the outset, it appears to this Court that, it
is not the defendant's case that no writ of summons was served upon
the defendant. The defendant contends that the provisions under Rule 2
(a) and (b) under Order XXIX of CPC, which mandatorily are required to
be complied with as twin conditions at a time have not been complied
with. The provisions cannot be read in isolation with each other. The
defendant's contention is that when it was served through post at the
registered service of the company, it was never delivered or to received
by the designated persons mentioned under Rule 2(a) under Order XXIX
of CPC. The contentions of the defendant is that even if the summon
was served by post at the registered office of the defendant company on
November 14, 2024 it was not served on the designated persons defined
under Rule 2 (a). It was not a valid service of writ of summons and
therefore, November 22, 2024, is the date and should be accepted as
the date of service of writ of summons when the representative of the
office of the Deputy Sheriff delivered the summon by hand service to the
principal officer of the company and it was accepted accordingly.
Therefore, if the date of service of summons is accepted as November
22, 2024 then the prayer for extension of time to file written statement
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through the instant application filed on March 20, 2025 is within the
mandated 120 days as provided under the amended Order VIII Rule 1 of
CPC.
20. Therefore, this Court has to first decide which date shall be
accepted as the date of service of summons November 14, 2024 or
November 22, 2024. The relevant provisions under Order XXIX of CPC
are quoted below :-
"Order XXIX :
1. Subscription and verification of pleading.- In suit by or against a
corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer of
the corporation who is able to depose to the facts of the case.
2. Service on corporation. - Subject to any statutory provision
regulating service of process, where the suit is against a corporation, the
summons may be served -
(a) On the secretary, or on any director, or other principal officer of the
corporation, or
(b) By leaving it or sending it by post address to the corporation at the
registered office, or if there is no registered office then at the place where
the corporation carries on business."
21. Order V of CPC deals with general provisions with regard to issue of
service, whereas Order XXIX specifically deals with suit by or against
corporation which applies against companies within the meaning of the
Companies Act. Since, a specific provision is laid down, the general
provisions neither can override the same nor can prevail thereupon.
22. On a meaningful and harmonious reading of Rule 2 under Order
XXIX of CPC, it appears to this Court that, where a suit is against a
corporation, as in the instant case being the defendant company, the
summons may be served on its secretary or any of its directors, or any
of its principal officer as provided under sub-Rule (a) thereto. Sub-Rule
(b) to Rule 2 provides that the summons on defendant company can be
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served, inter alia, by sending it through post addressed to the defendant
company at its registered office. In between the said provisions the
expression used is "or". Thus, on a meaningful reading of the said two
provisions laid down under sub-Rule (a) and (b), this Court finds the
conditions stated therein are independent to each other and cannot be
read in a conjunctive manner and those are disjunctive by their nature
and expressions. If hand service of summons upon any designated
person, as defined under sub-Rule (a) takes place, that is sufficient and
no further requirement is there to avail of any of the procedure defined
under sub-Rule (b) to Rule 2 under Order XXIX of CPC and vice-versa.
23. In the facts of the instant case, the case of the defendant is that the
writ of summons has been served at the registered office of the company
but the service report does not disclose that it has been served upon
any of the designated persons within the meaning of Rule 2(a) to Order
XXIX of CPC. It is not denied by the defendant that the writ of summons
has not been served at the registered office of the company. As such, on
reading of the provisions as provided under both sub-Rule (a) and (b) to
Rule 2 to Order XXIX of CPC on their interpretation, this Court is of the
considered view that, once the writ of summons has been served at the
registered office of the defendant company by the office of the Deputy
Sheriff as would be evident from the Deputy Sheriff's report and the
postal track report appended thereto showing delivery of postal article
at the defendant's registered office on November 14, 2024, it is
sufficient and lawful service of writ of summons on the defendant.
When the summons has been served by post at the registered office of
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the defendant, it is not required to be specifically delivered to or
accepted by any designated person as defined under Rule 2(a) to Order
XXIX of CPC.
24. In the matter of : M/s Shalimar Rope Works Ltd. (supra), the
Hon'ble Supreme Court had observed as under :-
" 7. The meaning of clause (b) has got to be understood in the background
of the provisions of the Code in Order 5 which is meant for issue and
service of summons on natural person. Sending a summons by post to the
registered office of the company, unless the contrary is shown, will be
presumed to be service on the company itself. But the first part of clause
(b) has got to be understood with reference to the other provisions of the
Code. In Rule 17 of Order 5 it has been provided :
Where the defendant or his agent or such other person as aforesaid
refuses to sign the acknowledgment, or where the service officer, after
using all due and reasonable diligence, cannot find the defendant, and
there is no agent empowered to accept service of the summons on his
behalf, nor any other person or whom service can be made, the serving
officer shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain, and shall then return
the original to the court from which it was issued, which a report
endorsed thereon or annexed thereto stating that the has so affixed the
copy, the circumstances under which he did so, and the name and
address of the person (if any) by whom the house was identified and in
whose presence the copy was affixed."
25. In the matter of: S.V. Enterprises (supra), the admitted fact was
that the writ of summons was served at a wrong address which was not
the address of the defendant. In the instant case, the defendant has not
raised any dispute with regard to the service of summons that the same
was not served at the correct address. Therefore, the ratio will not apply
in the facts of the instant case.
26. In the matter of: Pravinchandra s/o Dhanjibhaikotak (supra),
the summons was made over to a person who was not a designated
person as defined under Rule 2(a) to Order XXIX of CPC. In the instant
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case, admittedly summons has been served at the registered office of
the company and subsequently on the principal officer of the company.
Therefore, the ratio has no application in the facts of this case.
27. In view of the foregoing reasons and discussions, this Court is of the
firm and considered view that the writ of summons was properly and
lawfully served on the defendant on November 14, 2024 at its
registered office. Thus, the date of service of writ of summons should be
November 14, 2024.
28. Accordingly, the master summon having been taken out on March
21, 2025 was beyond the mandated 120 days under the amended
provisions of Order VII Rule 1(a) of the Code and as such the
application is not maintainable. Since, the mandated 120 days under
amended Order VIII Rule 1 of CPC has expired from the date of service
of writ of summons, the defendant has forfeited its right to file written
statement and the written statement shall not be allowed to be taken on
record.
29. In view of the above, this Court is also of the opinion that there is no
further requirement to scrutinize the causes shown by the defendant in
its supporting affidavit praying for extension of time to file written
statement. In the event, any written statement is submitted by the
defendant and taken on record, the same shall forthwith be taken of
the file and returned to the defendant without taking any cognizance of
it and the suit register and/or suit records wherever it is necessary,
shall be rectified accordingly recording that there shall be no written
statement of the defendant on record.
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30. The suit, henceforth, shall appear as undefended suit.
31. Resultantly, the instant application being IA NO. GA-COM/3/2025
stands dismissed without any order as to cost.
(Aniruddha Roy, J.)
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