Gujarat High Court
Saritaben Thakurdas Bhavnani vs Vijaykumar Ratilal Nayak on 14 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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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
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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
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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
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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
