Tci Express vs Maxon Precision Moter India Pvt ...
2023 Latest Caselaw 4669 Kant

                                              -1-
                                                    NC: 2023:KHC:25066-DB
                                                     COMAP No.491 of 2022




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 19TH DAY OF JULY, 2023
                                        PRESENT
                        THE HON'BLE MR. JUSTICE ALOK ARADHE
                                              AND
                    THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
                          COMMERCIAL APPEAL NO.491 OF 2022
               BETWEEN:

               1.   TCI EXPRESS
                    REP. BY ABHISHEK MISHRA
                    LEGAL OFFICER
                    100, D DEVARAJ URS TRCK
Digitally           TERMINAL INDUSTRIAL SUBURB
signed by
RUPA V              YASHAVANTHAPURA
                    BENGALURU -560 022
Location:
High Court          REPRESENTED BY ITS MANAGER.
of Karnataka                                                  ...APPELLANT
               (BY SRI. BALARAJ K.N. ADV.,)
               AND:

               1.   MAXON PRECISION MOTER INDIA PVT LIMITED
                    NIRAN ARCADE, NO.563/654
                    SECOND FLOOR, NEW B E L ROAD
                    RMV SECOND STAGE, BENGALURU -560 094
                    REPRESENTED BY ITS SUBROGEE/POWER AGENT
                    M/S. UNITED INDIA INSURANCE CO. LTD.,
                    DIVISIONAL OFFICE VI
                    NO.119, SYLVERSTRA ARCADE
                    EAST PARK ROAD, 11TH CROSS
                    MALLESHWARAM, BENGALURU -560 003
                    REPRESENTED BY ITS PRINCIPAL OFFICER.

               2.   M/S. UNITED INDIA INSURANCE CO. LTD.,
                    DIVISIONAL OFFICE VI
                    NO.119, SYLVERSTRA ARCADE
                    EAST PARK ROAD, 11TH CROSS
                    MALLESHWARAM
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                                 NC: 2023:KHC:25066-DB
                                  COMAP No.491 of 2022




   BENGALURU -560 003
   REPRESENTED BY ITS PRINCIPAL OFFICER.

                                         ...RESPONDENTS
(R1 & R2 SERVED)

      THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER
ORDER 41 RULE 1 OF CPC R/W SECTION 13(1A) OF THE
COMMERCIAL COURT ACT, 2015 PRAYING TO SET ASIDE THE
ORDER PASSED BY THE LEARNED LXXXIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-85), COMMERCIAL COURT,
BENGALURU IN COM. MISC. NO.48/2022 DATED 07.11.2022
BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.

    THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                      JUDGMENT

Mr.Balaraj K.N., learned counsel for the appellant.

None for the respondent though served.

This appeal has been filed under Section 13(1A) of

the Commercial Courts Act, 2015, against an order

dated 07.11.2022 passed by the Commercial Court by

which the application preferred by the appellant under

Order 9 Rule 13 of the Code of Civil Procedure, 1908 for

setting aside the exparte decree dated 01.06.2022 in

Com.O.S.No.727/2021 has been rejected.

NC: 2023:KHC:25066-DB COMAP No.491 of 2022

2. Facts necessary for adjudication of this appeal

are that the respondent filed a suit in

Com.O.S.No.727/2021 seeking recovery of amount of

Rs.8,82,523/-. The Commercial Court directed

issuance of summons to the appellant on 19.11.2022.

The summons issued to the appellant was received with

an endorsement that he has refused to accept the same.

Thereupon, Commercial Court placed the appellant

exparte on 03.12.2021. Thereafter, the Commercial

Court, by judgment and decree dated 01.06.2022 has

decreed the claim of the respondent. Hence, this

appeal.

3. Learned counsel for the appellant submits that

the procedure prescribed under Order V Rule 17 and 18

of the Code of Civil Procedure while effecting the service

of summons has not been followed. In support of

aforesaid submission, learned counsel for the appellant

NC: 2023:KHC:25066-DB COMAP No.491 of 2022

has placed reliance on the judgment of the Hon'ble

Supreme Court in SUSHIL KUMAR SABHARWAL Vs.

GURPREET SINGH AND OTHERS1.

4. We have considered the submission made by the

learned counsel for the appellant and have perused the

record. From perusal of the record, it is evident that the

Commercial Court has not followed the procedure

prescribed under Order V Rule 17 and 18 of the Code of

Civil Procedure, inasmuch as on refusal of the appellant

to receive summons, the summons was not affixed in

the office of the appellant. However, the aforesaid

aspect of the matter has not been appreciated by the

Commercial Court while dealing with the petition filed

by the appellant under Order IX Rule 13 of the Code of

Civil Procedure. Therefore, the exparte judgment and

decree against the appellant cannot be sustained in the

eye of law. It is accordingly quashed.

(2002) 2 SCC 377

NC: 2023:KHC:25066-DB COMAP No.491 of 2022

The matter is remitted to the Commercial Court.

The Commercial Court shall issue notice to the parties

and thereafter shall proceed to deal with the suit

expeditiously.

Accordingly, the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RV