Warner/Chappell Music Ltd. v. Spotify Ab

Bombay HC14 Jan 2021COMIP/547/2019

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COMMERCIAL SUITS.DOC Shephali IN THE HIGH…

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1-211-COMMON ORDER IN COMMERCIAL SUITS.DOC

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Shephali

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

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COMMON ORDER IN SERIAL NOS. 1 TO 211 ON THE REGULAR BOARD DATED 30TH SEPTEMBER 2021

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CORAM:G.S. PATEL, J DATED: 1st October 2021

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PC:-

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SHEPHALI SANJAY MORMARE

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Digitally signed by SHEPHALI SANJAY MORMARE Date: 2021.10.04 10:41:05 +0530

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1.This is a common order in 211 Commercial Suits that have
been listed today at the instance of the Registry. These date back to
2017. The reason for listing these, and which I will further explain
shortly, is that in none of these matters have the Plaintiffs sought to
get a Writ of Summons issued.

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2.The Commercial Courts Act 2015 (“CCA”) provides for a
fast track procedure for the disposal of Suits in the Commercial
Division. That is its statutory intent. To that end, it makes several
procedural and substantive departures from the general law. These
are uniquely applicable to commercial matters. These changes are
effected inter alia by amendments to the Code of Civil Procedure,
1908 (“CPC”). Among these is the provision in the CCA that a

Warner/Chappell Music Ltd. Vs Spotify Ab — Company and Corporate | Bombay HC (2021)

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Written Statement by Defendant must be filed within 30 days. The
act itself provides a maximum period of 120 days from the date of
service of the Writ of Summons within which a Written Statement
must be entered.1 If the Written Statement is not filed within 30
days, the Court may extend time, but not beyond 120 days. This
position in law is now settled by decision of this Court in Axis Bank
Ltd vs Mira Gehani & Ors.2

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3.There was recently an issue regarding the correct form of
service of Writ of Summons. The High Court on its Original Side
was following the procedure and applying the Form that applied to
regular suits. Specifically, a copy of the Plaint was not sent along
with the Writ of Summons. This provision of the High Court (OS)
Rules has since been amended. There are similar provisions
regarding such suits and service of Writ of Summons without a copy
of the Plaint applicable to the Bombay City Civil Court. In itself, this
is a peculiar situation and an inconsistency. Everywhere else in the
State of Maharashtra, a Writ of Summons is served in accordance
with the Civil Procedure Code, specifically Order V Rule 2. This
requires that a copy of the Plaint accompany the Writ of Summons.
For some reason that no one can explain, the Original Side Rules as
they previously existed and the extant Rules of the City Civil Court
indicate that in Mumbai, defendants do not need a copy of the plaint
to be sent with the Writ of Summons — presumably, Mumbai
defendants can enter a written statement without knowing what the

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4.The consequence of this is that in regular suits the time for
entering a Written Statement gets enlarged. There is no limitation.
In Commercial Suits, on the other hand, because of the special
provisions, Written Statements run up against limitation. Further,
Section 16 of the Commercial Courts Act makes it clear that the
provisions of the CPC prevail over the High Court Rules. This
means that for Commercial Suits, the Writ of Summons must be
served in accordance with Order V Rule 2 and not the old form and
the previous Rules.3

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5.This is the background. Defendants in Commercial Suits are
under a statutory limitation within which they must enter their
written statements. But the CCA contains no explicit provision
within which a plaintiff in commercial suit must act and comply with
procedures, whether this means curing filing defects or, as is the
case for all these 211 matters, getting the Writ of Summons issued.
To my mind, this is an inconsistency and an imbalance. If
commercial matters are to be expedited and fast-tracked, it cannot
be that the statutory intent was to disadvantage a defendant and give
plaintiffs an unbalanced benefit. To achieve the statutory intent,
there must bye an obligation for reasonable promptitude on the part
of a plaintiff in a commercial suit.

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6.I can think of no conceivable reason why the Writ of
Summons has not been issued in all these mattes. I note that every
single one of them is a case where all filing defects are cured and the
suits have been in fact received a final number. The plaintiffs must,
even in the absence of a statutory provision, be put to some
conditions and terms administratively. This is not a question of re-
writing the statute. It is merely a question of administrative
efficiency to give effect to the intent of the Commercial Courts Act
2015.

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Advocate must attend to and has nothing whatsoever to do
with the parties, or any need to obtain instructions, those
costs may well be imposed on the Advocates in question
personally, and not recoverable from the clients under any
circumstances.

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EIn any Commercial Suit where any defendant has already
appeared at an interim stage, it is open to such a defendant to
enter his/her/its Written Statements, if not already done,
even without waiting for service of the Writ of Summons.
The Registry will accept all such Written Statements filed
before service of the Writ of Summons.

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FIt is also open to the Advocates for the plaintiffs in each case
to seek an express consent and waiver from the advocates who
have already entered appearance for the Defendants waiving
service of the Writ of Summons. This is permissible because
all these suits are finally numbered. If that is done and the
defendants’ Advocates do expressly waive service and
consent to such a waiver of service, the time to file the
Written Statement for such a defendant will begin to run from
the date of the waiver.

Warner/Chappell Music Ltd. v. Spotify Ab

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