THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V. SHRAVAN KUMAR
C.O.M.C.A. No.31 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
Mr. D.V. Seetharama Murthy, learned Senior Counsel
appears on behalf of Ms. Shireen Sethna Baria, learned counsel
for the appellant.
Mr. Ramesh Babu Vishwanathula, learned counsel
appears for respondent No.1.
2. With the consent of the parties, the appeal is being heard finally.
3. This appeal under Section 13(1) of the Commercial Courts Act, 2015 has been filed against the order dated 26.10.2022 passed by the Commercial Court dismissing the petition filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure, 1908 ("CPC", for brevity) for setting aside the ex- parte judgment and decree dated 17.02.2020.
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4. The facts giving rise to filing of this appeal briefly stated are that respondent No.1/plaintiff filed C.O.S.No.44 of 2017 for permanent injunction and damages against the appellant and respondent No.2. The Commercial Court in the aforesaid suit directed issuance of personal notice to the appellant and respondent No.2 on 07.06.2017. As per the track report on record, the appellant has received the notice on 12.06.2017. On 07.07.2017, respondent No.1 filed proof of service.
5. The Commercial Court by order dated 07.07.2017 proceeded ex-parte against the appellant. Thereafter, the suit was dismissed for default on 16.08.2019 and was subsequently restored on 20.08.2019. The Commercial Court eventually passed an ex-parte judgment and decree on 17.02.2020. The appellant thereafter filed a petition on 28.12.2020 under Order IX Rule 13 of CPC on the ground that the appellant derived knowledge about the ex-parte judgment on receipt of e-mail on 26.10.2022 from respondent No.1/plaintiff. The Commercial Court, however, by order dated 26.10.2022 has dismissed the application preferred by the appellant merely on the ground that on irregular service of summons, an ex-parte judgment and ::3::
decree cannot be set aside provided the appellant has knowledge of the proceedings.
6. Learned counsel for the appellant submits that the summons was not served on the appellant. However, the aforesaid aspect of the matter has not been appreciated.
7. On the other hand, learned counsel for respondent No.1 has supported the order passed by the Commercial Court and has submitted that the appellant did not participate in the proceedings and had knowledge about institution of suit by respondent No.1.
8. We have considered the submissions made on both sides and perused the record.
9. Admittedly, the suit was dismissed for default on 16.08.2019 and the same was restored on 20.08.2019. However, after restoration of the suit, no fresh notice has been issued to the appellant and the learned Judge of the Commercial Court has pronounced the ex-parte judgment and decree on 17.02.2020. However, the aforesaid aspect of the matter has not been appreciated by the Commercial Court.
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After restoration of suit, a notice ought to have been issued to the appellant. Therefore, the impugned order dated 26.10.2022 cannot be sustained in the eye of law and is hereby set aside.
10. In the result, the appeal is allowed. The ex-parte judgment and decree dated 17.02.2020 passed in C.O.S.No.44 of 2017 is set aside and C.O.S.No.44 of 2017 is restored to file. The parties undertake to appear before the Commercial Court along with a copy of this order on 14.11.2023. The Commercial Court thereafter shall proceed to deal with the suit expeditiously.
Miscellaneous applications pending, if any, shall stand closed.
_____________________ ALOK ARADHE, CJ __________________________ N.V. SHRAVAN KUMAR, J Date: 06.10.2023 ES