M.L. Singhal, J. - (1.) STEEL Authority of India Limited a Company registered under the Companies Act, 1956 filed a suit for recovery of Rs. 2,82,23,995/ - with interest against M/s. Atma Tube Products Limited - a Company registered under the Companies Act, 1956, Harbhajan Singh and Depak Singh -defendants under Order XXXVII of the Code of Civil Procedure.
(2.) IN this case summons for service of the Defendants should have been issued on form No. 4 on which service to the defendant is issued in a suit filed under Order XXXVII CPC. Form No. 4 is a proforma of summons in a summary suit given in Appendix B of the Code of Civil Procedure. Form No. 4 reads as follows : - To Whereas _ has instituted a suit under OrderXXX VIT of the Code Code of Civil Procedure, 1908, for Rs. and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days for the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period often days, to obtain a decree for any sum and exceeding the sum of Rs. _____ and the sum of Rs._____for costs, together with such interest, if any, as the Court may order. If you cause an appearance to be entered for you, the plaintiff will thereafter service upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit. Leave to defend may be obtained if you satisfy the court by affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend. Given under my hand and the seal of the Court, this _____day of _____ Judge In this case service to the defendants was not effected on Form No. 4 prescribing summons in a summary suit. Instead service to them was issued on Form No. 1 laid down in Appendix -B which is a proforma for summons for disposal of suit (OrderS Rules 1,5) (tide). Process No. 1, summons for disposal of suit (Order 5, Rr. 1, 5) read as follows : - To Whereas _____ has instituted a suit against you for you are hereby summoned to appear in this "Court in person or by a pleader duly instructed, and able to answer all material question relating to the suit, or who shall be accompanied by some persons abb to answer all such questions, on the _____ day of at O'clock in the noon _____ to answer the claim; and as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon those evidence and all the documents upon which you intend to rely in support of your defence. Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence. Given under my hand and the seal of the Court, This _____day of _____ Judge"
(3.) AFTER service of the defendants on summons issued on Form No. 1 ibid, defendants appeared before the Court pursuant to the publication in a newspaper. After their service, learned trial Court passed the order dated 16.4.1998 Annexure P -2 which read as follows: "Defendants No. 2 and 3 appeared through Sh. V.K. Narang, Advocate and filed Memo of appearance. Now for filing written statement to come up on 22.7.1998. Contempt be also segregated.";