Karnataka High Court
M/S Sugam Packing Industries vs M/S Tiwnkle Impex on 7 November, 2025
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COMAP No. 593 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
COMMERCIAL APPEAL NO. 593 OF 2025
BETWEEN:
1. M/S SUGAM PACKING INDUSTRIES
PROPRIETOR SMT.SUMA
NO 05, SRI.MANJUNATHA INDUSTRIES ESTATE
MAGADI MAIN ROAD, HEROHALLI CROSS B,
BENGALURU-560091.
...APPELLANT
(BY SRI SAGAR B B,ADVOCATE)
AND:
1. M/S TIWNKLE IMPEX
REPRESENTED BY ITS PROPRIETOR
Digitally signed MR.RAJENDRA KUMAR JAIN
by PRABHAKAR NO 272, NANJUNDESHWARA NILAYA
SWETHA
KRISHNAN AKKIPET MAIN ROAD, BENGALURU-560053.
Location: High ...RESPONDENT
Court of
Karnataka (BY SRI ANISH P BHOJANI,ADVOCATE FOR C/RESPONDENT)
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 (1-
A) OF COMMERCIAL COURT ACT, 2015 READ WITH UNDER
SECTION 37 (1) (C) OF THE ARBITRATION AND CONCILATION ACT,
1996 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
27.10.2025 PASSED IN COMMERCIAL MISCELLANEOUS NO.66/2024
ON THE FILE OF HONBLE LXXXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, COMMERCIAL COURT, BENGALURU (CCH-83),
IN THE INTEREST OF JUSTICE AND EQUITY & ETC.
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COMAP No. 593 of 2025
HC-KAR
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
and
HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)
1. The appellant has filed the present appeal impugning an
order dated 27.10.2025 passed by the learned Commercial Court
in Com.Misc.No.66/2024.
2. The appellant-arrayed as defendant in the suit being
Com.O.S.No.15/2024-had filed the said application
(Com.Misc.No.66/2024), inter alia, praying that ex parte judgment
and decree dated 29.06.2024 passed by the learned Commercial
Court in Com.O.S.No.15/2024 be set aside and the appellant be
permitted to contest the case on merits.
3. It is material to note that the aforementioned suit being
Com.O.S.No.15/2024, was instituted by the respondent [plaintiff],
inter alia, seeking a decree for a sum of Rs.22,24,624/-
(Rs.Twenty Two Lakhs Twenty Four Thousand Six Hundred and
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Twenty Four only) including interest at the rate of 24% p.a. from the
date of the invoices. The plaintiff also claimed future interest at the
rate of 1% per day from the date of legal notice till realization costs
of the suit.
4. It is the plaintiff's case that it had, in usual course of business
supplied materials on credit basis to the defendant and had
maintained a running account. The plaintiff claimed that an amount
of Rs.11,52,299/- remained outstanding in respect of the goods
supplied against four invoices dated 03.07.2019, 10.08.2019,
14.09.2019 and 30.10.2019. The plaintiff also claimed that the
defendant had also provided an account confirmation dated
10.09.2019 acknowledging an amount of Rs.15,23,160/- as due
and payable to the plaintiff as against the aforesaid amount. The
defendant had subsequently made a payment of Rs.3,70,861/-.
Thus, the plaintiff sought recovery of the balance amount along
with interest quantified to Rs.10,72,325/-.
5. It is material to note that the said suit was filed as a summary
suit under Order XXXVII of the Code of Civil Procedure,1908
[CPC]. The order sheets, which have been placed on record
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indicate that the suit was registered on 03.01.2024 and summons
were issued to the appellant [defendant] in Form No.4 on
04.01.2024. The suit was thereafter listed on 12.02.2024. However,
none appeared for the defendant on 12.02.2024 and the defendant
was proceeded ex parte.
6. The suit was thereafter listed on 21.02.2024. On that date,
the defendant filed an application for recall of the order dated
12.02.2024 whereby, it was proceeded ex parte. The said
application was allowed with costs quantified at Rs.500/-. On that
day, the plaintiff filed a memo along with Form No.4(A) for
summary judgment and the defendant sought time for filing
objections. The suit was thereafter listed on 06.03.2024 for the said
purpose. However, none appeared for the defendant on
06.03.2024. Accordingly, the suit was posted for summary
judgment on 20.03.2024. The suit was called out on 20.03.2024,
but was adjourned to 26.03.2024 at the request of the counsel for
the plaintiff. The defendant was not present on that date as well.
7. On 26.03.2024, the learned counsel appearing for the
plaintiff presented his arguments. On this hearing as well, none
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was present on behalf of the defendant. The suit was posted for
summary judgment on 06.04.2024. However, the judgment was not
ready on that date and therefore, the suit was posted on
24.04.2024. It was thereafter listed on 07.06.2024, 21.06.2024,
27.06.2024, 29.06.2024 and was adjourned on each of the
occasions as the judgment was not ready. The judgment was
finally pronounced on 29.06.2024.
8. It is material to note that the defendant did not file any leave
to defend and therefore, in absence of the same, the plaintiff was
entitled to a summary judgment.
9. The appellant filed an application under Order IX Rule 13 of
the CPC to set aside the ex parte decree, which was decreed in
terms of the impugned order.
10. The explanation provided by the appellant for remaining
unrepresented was that the counsel for the appellant had not
appeared before the Court due to ill-health. The medical records
produced by the appellant indicate that the counsel was under
treatment from 05.02.2024 to 26.03.2024. However, the
Commercial Court noted that the counsel had appeared on
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21.02.2024. Additionally, the learned Commercial Court observed
that the counsel had not appeared at any stage after 21.02.2024
although the suit was listed on several occasions.
11. Considering the said material on record, the learned
Commercial Court rejected the appellant's application for recall of
the ex parte decree.
12. We find no flaw in the reasoning of the learned Commercial
Court. We also note that an application under Order IX Rule 13 of
the CPC would not be maintainable as the suit was filed under
Order XXXVII of the CPC. The learned counsel for the appellant
fairly concedes that the correct course would be to file an
application under Order XXXVII Rule 4 of the CPC for recall of the
ex parte decree.
13. It is settled law that an application under Order XXXVII Rule
4 of the CPC would require to set out special circumstances which
prevented a party from appearing or applying for leave to defend.
The applicant would also have to establish the relevant facts which
would entitle the applicant for grant of leave to defend the suit as
held by the Supreme Court in Rajni Kumar v. Suresh Kumar
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Malhotra and another: (2003) 5 SCC 315. This is a vital difference
between an application under Order IX Rule 13 of the CPC and an
application under Order XXXVII Rule 4 of the CPC. We have
examined the application filed by the appellant under Order IX Rule
13 of the CPC. It does not disclose sufficient grounds for grant of
leave to defend. It is also not accompanied by the relevant
documents which would be necessary to support an application for
leave to defend.
14. In view of the above, the present appeal is dismissed.
15. Pending application also stands disposed of.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C.M. POONACHA)
JUDGE
KPS
