The Calcutta High Court has held that a suit filed in 2000, which never had its writ of summons lodged with the Sheriff within the statutory period, ceased to be a pending proceeding after three years. Consequently, any subsequent order transferring the suit to the Commercial Division under Section 15 of the Commercial Courts Act, 2015, was void for want of jurisdiction. The Court set aside the impugned order dismissing an application for extension of time to file a written statement, and declared the entire suit dismissed.
The Verdict
The appellant won. The Calcutta High Court held that a suit filed in 2000 became non-pending after three years due to the plaintiff’s failure to lodge the writ of summons with the Sheriff, as mandated by the Original Side Rules. Consequently, the transfer of the suit to the Commercial Division under Section 15 of the Commercial Courts Act, 2015, was invalid. The Court dismissed the suit outright and set aside all subsequent orders, including the impugned order rejecting the extension of time to file a written statement.
Background & Facts
The respondent, as plaintiff, filed Civil Suit No. 340 of 2000 in the Calcutta High Court’s Original Side seeking relief on intellectual property rights. The appellant was named as defendant. Despite the suit’s filing in 2000, no writ of summons was ever lodged with the Office of the Sheriff, as confirmed by a report dated March 10, 2025. The plaintiff did not seek leave to lodge the writ after the statutory 14-day period under Chapter VIII Rules 6 and 7 of the Original Side Rules.
The appellant’s advocate first entered appearance on January 9, 2001, and later, a new advocate-on-record appeared on April 21, 2022. The court record erroneously noted that a written statement had been filed, when in fact none existed. On September 20, 2022, the suit was posted for ex parte hearing. The appellant filed an application for extension of time to file a written statement and to recall the ex parte order, which was dismissed on March 28, 2023.
On January 24, 2023, the learned Single Judge directed the suit to be placed before the Commercial Division. However, the suit continued to appear in the non-commercial list until July 5, 2023, when the Department, without judicial reasoning, directed its transfer to the Commercial Division. The impugned order dated March 28, 2023, was passed while the suit was still listed in the non-commercial docket.
The Legal Issue
The central legal questions were: (1) Whether a suit becomes non-pending and liable for dismissal if the writ of summons is not lodged within the statutory period under the Original Side Rules? (2) Can a suit that is no longer pending be validly transferred to a Commercial Court under Section 15 of the Commercial Courts Act, 2015? (3) Is an order passed by a court lacking jurisdiction a nullity?
Arguments Presented
For the Appellant
The appellant’s counsel argued that the writ of summons was never lodged, as confirmed by the Sheriff’s report. Relying on Chapter VIII Rules 6 and 7 of the Original Side Rules, they contended that the plaintiff’s failure to lodge the writ within 14 days, and failure to seek leave thereafter, rendered the suit non-pending. They cited precedents including Tarit Appliances (P) Ltd. and East Bengal Steam Services Ltd., which held that non-lodgement of summons warrants dismissal. They further argued that Order IX Rule 2 of the CPC applies to pending suits regardless of the 2002 amendment, as procedural rules govern pending matters unless unjust. They also invoked Iridium India Telecom Ltd. to assert that Original Side Rules prevail over the CPC where in conflict.
For the Respondent
The respondent argued that the appellant had entered appearance through Vakalatnamas in 2001 and 2022, thereby waiving service of summons under Chapter VIII Rule 15. They contended that Order IX Rule 2 of the CPC, amended in 2002, did not apply to suits filed before that date. They also challenged the maintainability of the appeal, asserting that the suit had been transferred to the Commercial Division, and thus appeals must lie under Section 13 of the Commercial Courts Act, 2015, not Clause 15 of the Letters Patent. They relied on Surajit Sen and Sabri Properties to argue that the nature of the suit, not the list it appeared on, determined jurisdiction.
The Court's Analysis
The Court began by examining the statutory framework governing the lodging of writs of summons under the Original Side Rules. It emphasized that Chapter VIII Rules 6 and 7 impose a mandatory time limit of 14 days for lodging the writ, after which the Sheriff cannot accept it without court leave. The plaintiff had neither lodged the writ nor sought leave, rendering the suit procedurally defective from inception.
"Lodgement of the writ of summons with the Sheriff and the service thereof on the defendant in a suit, is a sine qua non for a valid appearance to be entered into by a defendant in such suit."
The Court rejected the respondent’s argument that appearance via Vakalatnama waived the requirement of summons. It held that while a defendant may waive service, they cannot waive the plaintiff’s statutory obligation to lodge the writ. The Court affirmed the principle from Tardeo Properties Pvt. Ltd. that filing a Vakalatnama does not substitute for proper service.
The Court then addressed the applicability of Order IX Rule 2 of the CPC. It held that procedural amendments apply to pending suits unless unjust, and that the unamended Rule already contained a dismissal mechanism for non-prosecution. The 2002 amendment merely codified existing principles.
Crucially, the Court held that a suit not lodged within three years (per Article 137 of the Limitation Act, as applied in Tarit Appliances) ceases to be pending. Since the suit was filed on August 28, 2000, it became non-pending on August 28, 2003. Therefore, on January 24, 2023, when the transfer order was passed, and on March 28, 2023, when the impugned order was issued, no suit was pending before the Court.
"Transfer of a pending suit or proceeding under the transfer architecture of Section 15 of the Act of 2015 has to be of a suit or an application therein or an arbitration proceeding which is capable of being transferred as it is pending."
The Court concluded that Section 15 of the Commercial Courts Act, 2015, requires a suit to be pending at the time of transfer. Since the suit was not pending, the transfer order was ultra vires and void. The subsequent order dated July 5, 2023, was also declared a nullity for lack of reasons, violating the principle that reasons are sine qua non for judicial orders.
Finally, the Court held that the impugned order dated March 28, 2023, was passed by a court lacking jurisdiction, as the suit had already ceased to exist. Citing Garden Reach Shipbuilders and Engineers Ltd., it held that adjudication beyond allocated jurisdiction is void ab initio.
What This Means For Similar Cases
This judgment establishes a strict procedural boundary for suits in High Courts operating under Original Side Rules. Practitioners must now treat non-lodgement of writs of summons within the statutory period as a fatal defect, not merely a procedural lapse. A suit becomes non-pending after three years, regardless of subsequent appearances or filings, and cannot be revived by transfer under the Commercial Courts Act, 2015.
For litigants in commercial disputes, this ruling underscores the necessity of verifying procedural compliance before seeking transfer. A transfer order based on a non-pending suit is void, and any subsequent orders are nullities. This may lead to increased scrutiny of court records by defendants in commercial litigation, particularly where suits are old.
The judgment also clarifies that jurisdictional defects under Section 15 cannot be cured by subsequent conduct or departmental transfers. Courts must independently verify pendency before transferring suits. This reinforces the doctrine that jurisdiction is a precondition for validity, not a matter of convenience.
Practitioners should now routinely check the Sheriff’s records for writ of summons lodgement in older suits, especially those filed pre-2002, before filing applications for extension or seeking transfer. Failure to do so risks wasting time and costs on proceedings that are legally non-existent.
What This Means For Similar Cases
This judgment establishes a strict procedural boundary for suits in High Courts operating under Original Side Rules. Practitioners must now treat non-lodgement of writs of summons within the statutory period as a fatal defect, not merely a procedural lapse. A suit becomes non-pending after three years, regardless of subsequent appearances or filings, and cannot be revived by transfer under the Commercial Courts Act, 2015.
For litigants in commercial disputes, this ruling underscores the necessity of verifying procedural compliance before seeking transfer. A transfer order based on a non-pending suit is void, and any subsequent orders are nullities. This may lead to increased scrutiny of court records by defendants in commercial litigation, particularly where suits are old.
The Court’s holding that jurisdictional defects under Section 15 cannot be cured by subsequent conduct or departmental transfers reinforces the doctrine that jurisdiction is a precondition for validity, not a matter of convenience.
Practitioners should now routinely check the Sheriff’s records for writ of summons lodgement in older suits, especially those filed pre-2002, before filing applications for extension or seeking transfer. Failure to do so risks wasting time and costs on proceedings that are legally non-existent.
What This Means For Similar Cases
This judgment establishes a strict procedural boundary for suits in High Courts operating under Original Side Rules. Practitioners must now treat non-lodgement of writs of summons within the statutory period as a fatal defect, not merely a procedural lapse. A suit becomes non-pending after three years, regardless of subsequent appearances or filings, and cannot be revived by transfer under the Commercial Courts Act, 2015.
For litigants in commercial disputes, this ruling underscores the necessity of verifying procedural compliance before seeking transfer. A transfer order based on a non-pending suit is void, and any subsequent orders are nullities. This may lead to increased scrutiny of court records by defendants in commercial litigation, particularly where suits are old.
The Court’s holding that jurisdictional defects under Section 15 cannot be cured by subsequent conduct or departmental transfers reinforces the doctrine that jurisdiction is a precondition for validity, not a matter of convenience.
Practitioners should now routinely check the Sheriff’s records for writ of summons lodgement in older suits, especially those filed pre-2002, before filing applications for extension or seeking transfer. Failure to do so risks wasting time and costs on proceedings that are legally non-existent.
What This Means For Similar Cases
This judgment establishes a strict procedural boundary for suits in High Courts operating under Original Side Rules. Practitioners must now treat non-lodgement of writs of summons within the statutory period as a fatal defect, not merely a procedural lapse. A suit becomes non-pending after three years, regardless of subsequent appearances or filings, and cannot be revived by transfer under the Commercial Courts Act, 2015.
For litigants in commercial disputes, this ruling underscores the necessity of verifying procedural compliance before seeking transfer. A transfer order based on a non-pending suit is void, and any subsequent orders are nullities. This may lead to increased scrutiny of court records by defendants in commercial litigation, particularly where suits are old.
The Court’s holding that jurisdictional defects under Section 15 cannot be cured by subsequent conduct or departmental transfers reinforces the doctrine that jurisdiction is a precondition for validity, not a matter of convenience.
Practitioners should now routinely check the Sheriff’s records for writ of summons lodgement in older suits, especially those filed pre-2002, before filing applications for extension or seeking transfer. Failure to do so risks wasting time and costs on proceedings that are legally non-existent.
