Fresh Service Affidavit Based On Earlier Rejected Documents Cannot Prove Summons Service: Bombay High Court Imposes ₹50K Cost

The Bombay High Court has held that filing a fresh service affidavit based on documents earlier disapproved by the Court cannot be accepted as proof of service of summons. The Court observed that such conduct, despite repeated directions, warrants imposition of costs.

Justice Gauri Godse was hearing an interim application filed by the defendants seeking permission to treat their affidavit in reply as a written statement and to file an additional written statement. The plaintiff opposed the application, contending that the writ of summons had been duly served in 2019 and therefore the defendants' right to defend stood forfeited. The defendants, however, consistently maintained that no summons had been served upon them.

The Court examined earlier orders dated 3rd February 2022 and 21st April 2022, wherein it had already recorded that the affidavit of service filed in 2019 was insufficient and that there was no proof of service of summons. Despite these directions, no fresh steps were taken by the plaintiff to effect proper service. Instead, in March 2026, a fresh service affidavit was filed containing the same annexures that had been earlier disapproved.

On scrutiny of the fresh affidavit, the Court found that the postal receipts were illegible, original receipts were not produced, acknowledgements did not clearly correspond to the defendants, and the contents of the affidavit were inconsistent and confusing. It held that none of the documents relied upon could be accepted as valid proof of service of summons along with the plaint and annexures.

“… the service affidavit dated 27th March 2019 is not sufficient proof of service upon the defendants… the same documents filed in the fresh service affidavit of 2026, relied upon by the learned counsel for the plaintiff, cannot be accepted as valid service of the writ of summons,” the Court observed.

The Court also noted that despite multiple opportunities, the plaintiff failed to demonstrate proper service and instead issued a communication to the bailiff to file a fresh affidavit relying on the same documents which had already been disbelieved. The Court held that in the absence of valid service of summons or waiver thereof, the defendants' right to file a written statement could not be forfeited. It therefore permitted the defendants to file their written statement and additional written statement.

The Court also took note of the bailiff's conduct, observing that the bailiff cannot file a service affidavit mechanically without verifying the postal receipts of the packet dispatched, the acknowledgement, or the printout of the postal tracking report.

Taking note of the plaintiff's conduct in seeking to rely on documents already rejected and failing to comply with earlier directions, the Court held that the same called for the imposition of costs.

Accordingly, the High Court allowed the interim application, permitted the defendants to file a written statement within four weeks, directed the Deputy Sheriff to take steps as indicated, and imposed costs of Rs. 50,000/- on the plaintiff to be paid to the defendants.

Case Title: Bina Ramnik Chawda & Ors. vs. Cherag Balsara [Interim Application (L) No. 1862 of 2026 in Commercial Suit No. 6 of 2018]

Case Title: 2026 LiveLaw (Bom) 199

Click Here To Read/Download Order

Full View