Judgment :- This Application has been filed under Order XIV r/w. Order VII Rule 9 of Original Side Rules (hereinafter referred to as “O.S. Rules”) to set aside the Order/Decree dated 10. 2003 passed in C.S.No.664 of 1996. 2. The Respondent/Plaintiff is said to have supplied goods to the Applicant/Defendant under invoices. Alleging that the Applicant/Defendant had not made the payment towards the supply of materials, the Respondent has filed the Suit in C.S.No.664 of 1996 for recovery of a sum of Rs.11,90,725/- with interest at the rate of 21% p.a. The Suit was instituted as Summary Suit under Order VII Rule 1 of O.S. Rules r/w. Order 37 Rule 2 C.P.C. The Suit summons was served on the Applicant/Defendant on 211. 1996. The Defendant has neither filed the written statement nor filed a Petition seeking leave to defend the Suit within 10 days of receipt of the Summons. After putting up necessary Office Note, the Suit was posted before the Master for passing a decree. When the Suit came up for hearing before the Master, the learned Counsel for the Applicant/Defendant sought for time to file an Application seeking leave to defend. Observing that since the Suit is of the year 1996 and no purpose would be served in keeping the Suit pending further, the learned Master declined to adjourn the matter and decreed the Suit as prayed for by the order dated 10. 2003, which is challenged in this Application. 3. The Applicant/Defendant raised mainly three contentions: .* The Summons served on the Applicant was not in the stipulated form – form No.13-B. On the other hand, the Summons served on the Applicant was in Form No.13, which is prescribed for a Regular Suit. .* The mandatory requirement of the Special Procedure as contemplated under Order VII of O.S. Rules was not complied with and the Applicant was not put on Notice and that the Suit was filed as a Summary Suit. .* The Pliant averments do not indicate that the Suit was filed to recover a liquidated claim and the plaint can never be said to be filed under Order VII of O.S. Rules and Order 37 Rule 2 C.P.C. 4. The learned counsel for the Respondent/Plaintiff has concerned that the procedural defect cannot be a ground for setting aside the decree. The learned counsel for the Respondent/Plaintiff has concerned that the procedural defect cannot be a ground for setting aside the decree. It was further submitted that when summons was served in Form No.13, the Defendant could have very well filed the written statement and that the serving of Form No.13 could not have caused any prejudice to the Applicant as contended. 5. I have carefully considered the submissions and perused the records. The main point falls for consideration is, whether the mandatory provision of Order VII of O.S. Rules was not complied with and non-issuance of summons in the prescribed Form No.13-B has caused prejudice to the Applicant depriving him of the opportunity in filing the Application seeking leave to defend. 6. Order VII of O.S. Rules contemplates Special Procedure in respect of certain Suits. The Suit falling in Classes of Suits specified in Order VII Rule 1 of O.S. Rules can be filed either as a Summary Suit or as a Suit in an ordinary manner. The underlying policy behind Order VII of O.S. Rules (Order 37 Rule 1 CPC) is expeditious disposal of Suits of commercial nature involving liquidated demand evidenced by a document or any money payable by the Defendant arising on a Negotiable Instrument or on a Bond or a Contract. 7. Order VII of O.S. Rules contemplates Special Procedure to be followed in respect of Summary Suits and compliance of Special Procedure is mandatory and a bare reading of Order VII of O.S. Rules makes it clear that the compliance of the Special Procedure is mandatory. Order VII Rule 2 of O.S. Rules reads as under: “Special procedure in respect of suits under this order. 2. Subject to the provisions of Rule 7 below the procedure prescribed by this order shall be followed in all suits instituted under Rule 1 above the ordinary procedure being excluded to that extent. 8. As per Order VII Rule 3 of O.S. Rules, the summons shall be in Form No.13-A or 13B in Appendix II or in such other form as may be from time to time prescribed. Order VII Rule 3 of O.S. Rules reads as under:- “Forms of Summonses. 3. 8. As per Order VII Rule 3 of O.S. Rules, the summons shall be in Form No.13-A or 13B in Appendix II or in such other form as may be from time to time prescribed. Order VII Rule 3 of O.S. Rules reads as under:- “Forms of Summonses. 3. The summonses shall be in Form No.13-A or 13-B in Appendix II to these rules, or in such other form as may be from time to time prescribed.” A conjoint reading of Rules 2 and 3 of O.S. Rules would make it clear that service of summons in Summary Suit shall be in Form No.13-A (in case of Summary Suits instituted on Negotiable Instrument) or Form No.13-B (in case of Summary Suits for recovery of liquidated claim) is mandatory. 9. In the present case, the Suit claim is based on the commercial transaction, for which, Form No.13-B is relevant. Form No.13-B reads as follows: “BETWEEN A.B. …… Plaintiff AND C.D …… Defendant To C.D. – The Defendant (Names, description and place of residence) Whereas on the ……… day of ……. 19 ……, the above named plaintiff instituted a suit in the High Court against you by presenting a plaint, whereby the plaintiff claims a liquidated debt or demanded for the sum of Rs ……… according to the particulars summarized in the endorsement of this summons, you are hereby summoned to obtain leave from the Court within TEN days of the service hereof to defend the suit and within such time to cause appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such days ………. to obtain a decree for any sum not exceeding the sum of Rs ……. and the sum of Rs ………. for costs and interest on the said sum and costs at the rate of 6 per cent, per annum from the date of decree till date of payment. to obtain a decree for any sum not exceeding the sum of Rs ……. and the sum of Rs ………. for costs and interest on the said sum and costs at the rate of 6 per cent, per annum from the date of decree till date of payment. Leave to defend may be obtained on an application to the Master supported by affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that you should be allowed to defend the suit………” From a reading of Form No.13-B, it is seen that the Defendant is called upon to obtain leave from the Court within 10 days of the service to defend the Suit and within such time to cause appearance to be entered for the Defendant. In default, the Plaintiff will be entitled to obtain a decree at any time after the expiration of such days. 10. Order VII Rule 5 of O.S. Rules mandates that in any case, in which the plaint and summons are in the form prescribed, the Defendant shall not defend the Suit, unless the obtains leave to defend from the Master. In default of the Defendant obtaining such leave or if he fails to defend the Suit in pursuance of such leave, the allegations in the plaint shall be deemed to be admitted and the Plaintiff shall be entitled to a Decree for the sum claimed in the Pliant. Order VII Rule 5 of O.S. Rules reads as under:- “Leave to defend to be obtained; in default decree to be passed. 5. In any case in which the plaint and summons are in the form prescribed in this order, the defendant shall not defend the suit unless he obtains leave to defend from the Master as hereinafter provided. In default of the defendant obtaining such leave or if he fails to defend in pursuance of such leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for the sum claimed in the plaint, …..” 11. In a summary Suit, the Defendant is not entitled to as of right to put in a defence. He can apply for leave within 10 days of service of summons (for judgment). In a summary Suit, the Defendant is not entitled to as of right to put in a defence. He can apply for leave within 10 days of service of summons (for judgment). In other words, the Defendant should move within 10 days of service of summons for judgment by affidavit or otherwise, disclosing such facts as may be deemed sufficient to entitle him to apply on such summons for leave to defend the Suit. Where after service of Suit notice, the Defendant failed to appear within 10 days and did not apply seeking leave to defend the Suit the Plaintiff is entitled to a decree. By reading of the Rules, it emerges that service of notice in Form No.13-A or 13-B is mandatory to put the Defendant on notice and that he has to apply within 10 days and obtain leave to defend. 12. In this case, what we find is that the Defendant was served with the summons prescribed for a Regular Suit viz., Form No.13. Contrary to Form No.13-B, Form No.13 calls upon Defendant to appear in person or through Advocate to answer the Plaintiff’s claim. Form No.13 reads as under: “To ……………. Defendants Whereas, on the ……….. day of ……… 19 …….., the above named plaintiff instituted a suit in our said Court against you by presenting a plaint, whereby ……… claim the relief whereof the short particulars are endorsed hereon (or annexed hereto), you are hereby summoned to appear before the Court at the hour of [10.30] o’ clock in the forenoon of the day …… after service of this summons upon you, in person or by Advocate, to answer the plaintiff’s claim and to bring with you any document in your possession or power relating to the merits of the plaintiff’s case, or upon which you intend to rely in support of your defence and take notice that in default of your so doing the suit will be heard and determined in your absence. And also take notice that, if you intend to defend the suit, you must cause an appearance to be entered on your behalf and file in Court a written statement stating the grounds of your defence within [30] days after service of this summons upon you in which case the suit will be entered in the general list of causes. And also take notice that, if you intend to defend the suit, you must cause an appearance to be entered on your behalf and file in Court a written statement stating the grounds of your defence within [30] days after service of this summons upon you in which case the suit will be entered in the general list of causes. And also take notice that leave to institute this suit in this Court was granted by order dated the …… day of ….. and that you are at liberty to apply to this Court to stay the said proceedings.” 13. In this case, summons was served upon the Defendant only in Form No.13, which reads as under: “Between M/s. Skin Trade Agencies Rep. by its Prop. Plaintiff M/s. Indo International (P) Ltd. Rep. by its Director Umromal Lodha 16. Sunkurama Chetty ST, Madras.1. Defendants Whereas, on the 24th day of June 1996 the above named plaintiff has instituted a suit in our Court against you by presenting a plaint (annexed hereto). We command you to appear before the Court at the hours 10.15 a.m. in the forenoon of the first day of 6 weeks after service of this summons upon you in person or Attorney or Counsel to answer the Plaintiff’s claim and to bring with you any document in your possession or power relating to the merit of Plaintiff’s case, upon which you intend to rely in support of your defence and take notice that in default of your so doing the suit will be heard and determined in your absence. And also take notice that, if you intend to defend the suit, you must cause an appearance to be entered on your behalf and file in the Court a written statement stating the grounds of your defence within six weeks after service of the summons upon you in which case the suit will be entered in the general list of causes. S.d. C.O. (O.S)” 14. It is thus seen that the summons served on the Defendant is Form No.13, calling upon Defendant to appear before the Court either in person or by Advocate to answer the Plaintiff’s claim. By reading of the summons in Form No.13 served on the Defendant it is evident that the Defendant was not put on notice that he has to file an application to obtain leave to defend. By reading of the summons in Form No.13 served on the Defendant it is evident that the Defendant was not put on notice that he has to file an application to obtain leave to defend. Right to file written statement accrues to the Defendant only when leave to defend is granted to the Defendant. When the Defendant was not put on notice to obtain leave to defend, it cannot be said that the Defendant had knowledge of his right to file Application to obtain leave to defend. 15. It is no doubt true that the plaint has been filed under Order VII Rule 1 of O.S. Rules r/w. Order 37 Rule 2 C.P.C. As per Order VII Rule 5 serving of plaint and summons in the prescribed form is mandatory. While so, merely because the caption of the plaint has been stated as “Order VII Rule 1 of O.S. Rules and Order 37 Rule 2 C.P.C.”, it cannot be contended that the Defendant had knowledge of the institution of the Suit as Summary Suit. 16. The learned counsel for the Respondent/Plaintiff has contended that on being served with summons in Form No.13, the Applicant/Defendant could have filed the written statement in response to the summons. It may be that the Defendant might have been negligent in filing the written statement in response to the summons served on him in Form No.13. But, that cannot cure the defect. Perhaps the Defendant might have been under the impression that the Suit would be listed under the caption “Undefended Board”. In my considered view, since, the Defendant was not served with the summons in Form No.13-B, the Defendant did not have the opportunity of knowing that the Summary Suit has been filed claiming liquidated demand and that he has to file an Application for leave to defend. Due to non-compliance of the mandatory provision, the Applicant/Defendant is deprived of the opportunity of defending the Suit. When the matter was listed before the Master, the learned counsel for the Defendant made a request for filing the Application to obtain leave to defend the Suit. Observing that the Suit is of the year 1996, the learned Master declined the request and decreed the Suit as prayed for. 17. When the matter was listed before the Master, the learned counsel for the Defendant made a request for filing the Application to obtain leave to defend the Suit. Observing that the Suit is of the year 1996, the learned Master declined the request and decreed the Suit as prayed for. 17. The learned counsel for the Respondent/Plaintiff has contended that any defect in the procedural law could only be a technicality and that cannot be a ground for setting aside the decree in the Suit of the year 1996. Of course, procedural prescriptions are the handmaid and not the mistress nor the restraint in the administration of justice. But, where, there is non the restraint in the administration of justice. But, where, there is noncompliance of Mandatory Rules, it cannot be said that it is only a procedural irregularity. Since, the Defendant had been deprived of the opportunity of knowing the nature of the Suit and that he has to file an Application to obtain leave to defend, the impugned order dated 10. 2003 cannot be sustained. 18. For the foregoing reasons, this Application is allowed. The decree in C.S.No.664 of 1996 dated 10. 2003 is set aside. The Suit shall be listed before the Master after four weeks. The Applicant/Defendant is at liberty to file an Application seeking leave to defend within a period of two weeks from the date of receipt of copy of this order. Any such Application, if filed shall be considered independently on its own merits. It is made clear that the observations made in this order may not be construed as expression of opinion on the merits of the case or on the merits of the Application, if any to be filed seeking leave to defend.