Gujarat High Court
M/S. Yes Collection (Authorized Person ... vs M/S. Kunal Textile Through Prop. ... on 8 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/FA/4844/2023 ORDER DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4844 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/FIRST APPEAL NO. 4844 of 2023
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M/S. YES COLLECTION (AUTHORIZED PERSON VISHNUBHAI) VISHNU
NAGORAO KALE
Versus
M/S. KUNAL TEXTILE THROUGH PROP. DHANRAJ G PAWAR
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Appearance:
MR RAJESH M CHAUHAN(2470) for the Appellant(s) No. 1
MR KISHAN N BRAHMBHATT(11382) for the Defendant(s) No. 1
MR NILESH S BRAHMBHATT(11421) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 08/02/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard learned counsels for the respective parties
and perused the record.
2. The instant appeal filed under Section 13 of the
Commercial Courts Act, 2015 is directed against the
judgment and order dated 06.08.2022, whereby the suit for
recovery of an amount of Rs. 5,25,000/-, has been decreed
along with simple interest at the rate of 8% per annum from
the date of filing of the suit till the realization of the amount
from the defendant. The challenge to the decree passed by
NEUTRAL CITATION
C/FA/4844/2023 ORDER DATED: 08/02/2024
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the Commercial Court is based on the assertion that
summons were not duly served upon the proprietor of the
defendant firm namely M/s. Yes Collection.
3. The defendant M/s. Yes Collection was impleaded
through authorized person Mr. Vishnubhai, whereas
proprietor of the firm was wife of Mr. Vishnubhai, upon whom
there was no service of summons. The contention is that the
Commercial Court has erred in accepting the service upon
the defendant as deemed sufficient, on the basis of report of
the baliff Exh. 9. Apart from this submissions, no other
contentions have been made on the merits of the case of the
plaintiff.
4. We may record that the plaintiff, which is a
proprietorship firm, has pleaded that the defendant had
purchased certain goods from the plaintiff on the credit basis
as per the requirement of the defendant. The invoices of
supply of the goods were issued upon the defendant at the
time of delivery of the goods, the payment was not made
within the time within a period of 90 days from the date of
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C/FA/4844/2023 ORDER DATED: 08/02/2024
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receipt of the goods. It is noted by the Commercial Court that
prior to the institution of the suit, a legal notice dated
13.08.2019 was issued upon the defendant at the last known
address by a registered post and the said notice was duly
served. Even thereafter, the defendant did not bother to
contact the plaintiff or make payment. It is brought on
record by way of an affidavit-in-reply filed by the respondent
herein that on the presentation of the suit, a pre-institution,
non-starter was issued on 15.03.2021, wherein the date
scheduled for appearance of the parties were 22.01.2021 and
10.03.2021. The pre-institution mediation case No.237/2020
was registered and non-starter report dated 15.03.2021
appended at page No. '37' filed by the respondent indicates
that the Advocate of the appellant herein (defendant therein)
had made a statement in writing that "question of mediation
does not arise". With the closer of the pre-institution
mediation proceedings, the suit was registered on 22.09.2021
and, thereafter, the trial Court records that summons under
Order XXXVII of the CPC was sent to the defendant, which
was served by refusal as per the baliff report at Exh.9.
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5. Despite service of summons, the Trial Court had
waited for a sufficient long time, which is evident from the
Rojkam brought on record and the order-sheet of the trial
Court dated 28.03.2022 on the record of the affidavit filed by
the respondent. The suit was decreed on 06.08.2022. The
contention of the learned counsel for the appellant that the
summons were not duly served upon the proprietor of the
firm, therefore, cannot be accepted. It was open for the
defendant to file an application for rejection of the suit on the
ground of non-joinder of the necessary party. But by avoiding
the proceedings, the petitioner cannot be permitted to raise
this issue in appeal.
6. Be that as it may, the defendant / appellant herein
has chosen not to participate in the proceedings throughout
despite having sufficient knowledge of the proceedings,
initially intimated by the plaintiff vide legal notice dated
13.08.2019 and further the appellant being present in the
pre-institution mediation proceedings. It is proved that the
notice of the suit was duly served upon the defendant.
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C/FA/4844/2023 ORDER DATED: 08/02/2024
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7. We may further record that the decree passed by the
trial Court dated 06.08.2022 is sought to be challenged in the
present appeal, which was presented on 01.05.2023 after the
summons on the Precept Application was issued to the
defendant / appellant herein. It is admitted that the execution
application is pending consideration before the Trial Court.
8. Having noted the above, we do not find any
substance in the submissions of the learned counsel for the
appellant to set aside the decree dated 06.08.2022 and
remand the matter to the trial Court solely on the premise
that the notice was not duly served upon the proprietor of the
firm, which was impleaded as defendant through the
authorized person namely Vishnubhai.
9. The present First Appeal is, accordingly, dismissed.
Civil Application for stay as well as any other pending
application(s), if any, shall also stand disposed of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
AMAR SINGH
