Gujarat High Court
Saritaben Thakurdas Bhavnani vs Vijaykumar Ratilal Nayak on 14 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/3991/2025 ORDER DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3991 of 2025
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SARITABEN THAKURDAS BHAVNANI & ANR.
Versus
VIJAYKUMAR RATILAL NAYAK
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Appearance:
AKSH S GANDHI(9402) for the Petitioner(s) No. 1,2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 14/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This petition has been filed invoking the extraordinary supervisory jurisdiction of this Court under Article 227 of the Constitution of India to challenge the judgment and order dated 09.09.2024 passed by the Commercial Court, City Civil Court, Ahmedabad, in dismissing the Civil Miscellaneous Application No. 443 of 2013 seeking for recall of ex-parte decree dated 22.12.2011 passed in a Summary Suit i.e. Civil Suit No. 509 of 2011.
2. Before proceedings with the matter, we may note that the present petition has been presented on 21.02.2025, after a gap of about five months seeking to assail the order Page 1 of 4 Uploaded by VARSHA DESAI(HC01393) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 22:32:04 IST 2025 NEUTRAL CITATION C/SCA/3991/2025 ORDER DATED: 14/07/2025 undefined passed by the Commercial Court in rejecting the application under Order 37 Rule 4 of the Code of Civil Procedure Code, 1908 (CPC), noticing that the defendant has failed to show sufficient cause for not filing any application for leave to defend within the stipulated time period. It is noted by the Trial Court that the defendant had put in appearance in the proceedings of Civil Suit No. 509 of 2011 which was for recovery of sum of Rs. 6,77,600/- alongwith interest at the rate of 18% per annum. The facts leading to the passing of ex-parte decree dated 22.12.2011 for the aforesaid amount has been noted by the Trial Court which records that the defendant no. 1 issued a cheque for an amount of Rs. 6,77,600/- from her bank account in favour of the plaintiff which was subsequently dishonored with the reasons that "account closed". A legal notice dated 15.04.2008 was sent by the plaintiff and subsequently a summary suit under Order 37 of CPC was filed for recovery of the owed amount. The Trial Court has recorded that there is no indication that the defendant responded to the plaintiff's notice dated 15.04.2008. The suit summons were duly served to the defendants, who Page 2 of 4 Uploaded by VARSHA DESAI(HC01393) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 22:32:04 IST 2025 NEUTRAL CITATION C/SCA/3991/2025 ORDER DATED: 14/07/2025 undefined had put in appearance in the Court through their learned advocate. The plaintiff submitted summons for judgment in accordance with Order 37 of the CPC vide Exh. 9, which was duly served to the defendant's advocate. The case was subsequently kept for filing of the leave to defend. However, the defendants failed to file leave to defend and hence, the Court proceeded to pass a decree in favour of the plaintiff.
3. Having noted the above, we may record that the application under Order 37 Rule 4 of CPC seeking for recalling of the ex-parte judgment and decree dated 22.12.2011 appears to have been filed after a period of two years. It would be pertinent to note that the said application was dismissed for want of prosecution vide order dated 14.09.2016 noticing that the applicant was not inclined to proceed with the matter. It appears that after restoration of the same, it has been decided on merits with the discussion in the judgment impugned dated 09.09.2024, wherein, the Trial Court has observed in paragraph nos. 16 to 19 that the defendant has failed to make out any sufficient cause for not filing the application Page 3 of 4 Uploaded by VARSHA DESAI(HC01393) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 22:32:04 IST 2025 NEUTRAL CITATION C/SCA/3991/2025 ORDER DATED: 14/07/2025 undefined for leave to defend and as such has not been able to raise any triable issue.
4. With the above, we do not find any good ground to interfere with the impugned judgment. The present petition is dismissed being devoid of merits.
5. The reliance placed on the decision of the Apex Court in the case of Mahesh Kumar Joshi V/s. Madan Singh Negi reported in (2015) 12 SCC 254 is of no benefit, inasmuch as, the said decision was considering the peculiar facts and circumstances of the said case.
(SUNITA AGARWAL, CJ ) (D.N.RAY,J) VARSHA DESAI Page 4 of 4 Uploaded by VARSHA DESAI(HC01393) on Wed Jul 16 2025 Downloaded on : Wed Jul 16 22:32:04 IST 2025