Bombay High Court Rejects Producer Firoz Nadiadwala’s Plea To Dismiss 24 Crore Suit
The Bombay High Court has rejected an application filed by film producer Firoz A. Nadiadwala seeking dismissal of a 24-crore commercial suit filed against him, on the ground that the plaintiffs failed to serve him with a writ of summons. The Court held that since he had entered appearance through advocates and was fully aware of the proceedings from inception, the purpose of summons had been satisfied.
A Single Bench of Justice Abhay Ahuja observed, “There would be no need for the Plaintiffs to serve a writ of summons as the very object and purpose of service of writ of summons has become redundant and needless judicial time in passing directions for such service of writ of summons need not be wasted.”
The Court added, “In regular suits which have been subsequently converted to Commercial Suits, there is no requirement to formally serve a writ of summons… Rule 87 of the Bombay High Court (Original Side) Rules, 1980 is therefore not attracted.”
Senior Advocate M.M. Vashi appeared for the Applicant, while Senior Advocate Naushad Engineer represented the Defendants.
Brief Facts
The original Plaintiff had filed a civil suit in August 2015 seeking recovery of 24 crore from the Applicant/Defendant, arising out of a commercial transaction. Though the suit was initially filed as an ordinary civil suit, it was later converted into a commercial suit and transferred to the Commercial Division upon the enactment of the Commercial Courts Act, 2015.
Subsequently, the Defendant filed an interim application in 2023 seeking dismissal of the suit, arguing that no writ of summons had ever been issued or served upon him, either at the time of filing or after the suit was transferred.
In response, the Plaintiff submitted that the Defendant had already entered appearance through a Senior Advocate in August 2015, that his law firm had filed a Vakalatnama, and that the Defendant was fully aware of the proceedings from the beginning. The Plaintiff pointed out that a consent order dated 1st September 2015 had been passed on record, under which 12.5 crore was directed to be paid, and the Defendant had undertaken not to release his next film without settling the balance.
Reasoning of the Court
The Court examined whether failure to serve a formal writ of summons in a suit that was initially filed as a regular civil suit, but later converted into a commercial suit, could be a ground to dismiss the proceedings.
Referring to the Bombay High Court’s 2008 Notification, the Court stated, “With effect from 29th September 2008, if a Defendant had filed a Vakalatnama and entered an appearance, there was no requirement to formally serve a writ of summons upon such Defendant.”
The Court referred to the decision of the Supreme Court in Sunil Poddar v. Union Bank of India (2008), and reiterated if the Defendant had notice of proceedings and had participated, the technical requirement of service was satisfied.
The Court clarified that the mandatory 120-day period for filing written statements under the Commercial Courts Act applies only to suits instituted as commercial suits from the outset, and not to transferred suits, stating, “The ratio in Axis Bank is not applicable to the case at hand… In transferred suits, the rigours of the amended CPC and the 120-day limitation for written statements do not apply.”
The Court, while acknowledging that the Prothonotary had passed an order fixing a timeline for filing the written statement, which it held to be without jurisdiction under Section 15(4) of the Commercial Courts Act, noted that no prejudice had been caused, as the Defendant had been participating in the matter from inception.
The Bench observed, “There was no requirement for the Plaintiffs to formally serve a writ of summons… the Defendant No.1 had entered appearance, filed Vakalatnama, and was aware of the nature of Plaintiffs’ claim. Ergo, no prejudice would be caused to the Defendant.”
The Court held that where a Defendant has entered appearance and participated in proceedings even before a suit is transferred to the Commercial Division, the purpose of formal service of summons stands fulfilled. In such cases, Rule 87 of the Original Side Rules and the formal requirements of service under the Commercial Courts Act do not apply.
Accordingly, the Court dismissed the interim application to the extent it sought dismissal of the suit or recall of earlier orders for want of summons.
However, the Court clarified that the timeline fixed by the Prothonotary for filing the written statement was without jurisdiction, and clarified that all future directions in such matters must be issued by the Commercial Division alone.
Cause Title: Firoz A. Nadiadwala v. Anil Dhanraj Jethani & Anr. (Neutral Citation: 2025:BHC-OS:8573)
Appearance:
Applicant: Senior Advocate M.M. Vashi; Advocate Manisha Desai
Defendants: Senior Advocate Naushad Engineer; Advocates Yohaan Limathwalla, Vipul Makwana, Nikhil Sonar, Ashok Dhanuka, Pravin Singh
