Madras High Court
Onkar Kanwar vs M/S.Shiva Texyan Ltd on 21 November, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 22.10.2025 Order pronounced on : 21.11.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.Nos.5041 & 5044 of 2025
& CMP.Nos.25445 & 25451 of 2025
CRP.No.5041 of 2025:
1.Onkar Kanwar
2.Taru Kanwar ... Petitioners
Vs.
1.M/s.Shiva Texyan Ltd.,
No.56, North Boag Road,
T.Nagar, Chennai – 600 017
Represented by its Manager (Legal)
Mr.Muthuraman
[Amended as per order dated
02.12.2016 in Application
Nos.5925 & 5926 of 2015]
2.The Official Liquidator of
M/s.Apollo Tubes and Steel Industries Ltd.,
Attached to the High Court of Delhi,
Lok Nayak Bhavan,
8th Floor, Khan Market,
New Delhi – 110 003.
[Amended as per order dated
02.12.2016 in Application
1/24
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Nos.5925 & 5926 of 2015]
A.P.Kanwar (Deceased)
Raunaq Singh (Deceased)
3.Promilka Kanwar
4.Githanjali Prashant
5.Vikrant Kumar
6.Sahil Kanwar
[Defendant Nos.4 to 7 are
impleaded as per order dated
02.08.2006 in Application
No.2671 of 2002]
Sardani Satwant Raunaq Singh (Deceased)
7.Rani
Surindar Kapur (Deceased) ... Respondents
[Impleaded as per order dated
02.08.2006 in Application
No.2671 of 2002]
Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside
the impugned order dated 01.09.2025 passed by the Principal Commercial
Court at Egmore, Chennai, in I.A.No.1 of 2025 in C.O.S.No.833 of 2022.
CRP.No.5044 of 2025:
2/24
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1.Promila Kanwar
2.Githanjali Prashant
3.Shahail Kanwar ... Petitioner
Vs.
1.M/s.Shiva Texyan Ltd.,
No.56, North Boag Road,
T.Nagar, Chennai – 600 017
Represented by its Manager (Legal)
Mr.Muthuraman
[Amended as per order dated
02.12.2016 in Application
Nos.5925 & 5926 of 2015]
2.The Official Liquidator of
M/s.Apollo Tubes and Steel Industries Ltd.,
Attached to the High Court of Delhi,
Lok Nayak Bhavan,
8th Floor, Khan Market,
New Delhi – 110 003.
[Amended as per order dated
02.12.2016 in Application
Nos.5925 & 5926 of 2015]
A.P.Kanwar (Deceased)
Raunaq Singh (Deceased)
3.Vikrant Kumar
4.Onkar Kanwar
5.Taru Kanwar
3/24
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6.Rani
Surindar Kapoor (Deceased)
[Defendant Nos.8 to 12 impleaded
as per order dated 02.08.2006 in
Application No.2671 of 2002]
... Respondents
Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside
the order dated 01.09.2025 passed by the Principal Commercial Court at
Egmore, Chennai, in I.A.No.2 of 2025 in C.O.S.No.833 of 2022.
For Petitioners : Mr.P.V.Balasubramaniam
Senior Counsel
for Mr.T.Poornam in both CRPs
For Respondents : Mr.Srinath Sridevan
Senior Counsel
for Mr.R.Ramasubramaniam Raja for R1
in both CRPs
COMMON ORDER
These revision petitions have been filed, challenging orders in
I.A.No.1 of 2025 in C.O.S.No.833 of 2022 and I.A.No.2 of 2025 in the very
same Commercial Suit on the file of the Principal Commercial Court,
Egmore.
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2.CRP.No.5041 of 2025 has been filed by the defendants 9 and 10 in
the suit, whereas CRP.No.5044 of 2025 has been filed by the defendants 4,
5 and 7. The application in I.A.No.1 of 2025 was filed to condone the delay
of 25 days in filing the petition to set aside the ex-parte decree in
C.O.S.No.833 of 2022 and the application in I.A.No.2 of 2025 was filed by
the defendants 4 to 7 was directly under Order IX Rule 13 of CPC to set
aside the ex-parte decree dated 24.11.2023 in C.O.S.No.833 of 2022.
3.I have heard Mr.P.V.Balasubramaniam, learned Senior Counsel for
Mr.T.Poornam, learned counsel for the petitioner and Mr.Srinath Sridevan,
learned Senior Counsel for Mr.R.Ramasubramaniam Raja, learned counsel
for the 1st respondent in both the revision petitions.
4.Mr.P.V.Balasubramaniam, learned Senior Counsel would submit
that the suit was initially filed before the Original Side of this Court and in
view of the change in pecuniary jurisdiction, the suit was transferred to the
file of the City Civil Court and re-numbered as O.S.No.676 of 2021 and
pending the suit before the City Civil Court, with the constitution of the
Commercial Courts, the suit was transferred to the Commercial Court and
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renumbered as COS.No.833 of 2022. The learned Senior Counsel would
further submit that at no point of time, there has been service of summons
on the petitioners, despite the petitioners having entered appearance before
this Court when the suit was pending in the Original Side. He would further
state that the petitioners were entitled to notice when the suit was
transferred to the City Civil Court and unless the petitioners were put on
notice about the renumbering of the suit and the hearing date, it was not
possible for the petitioners to enter appearance.
5.Mr.P.V.Balasubramaniam, learned Senior Counsel would also state
that even when the suit was transferred to Commercial Court, applying the
same analogy, he would contend that the petitioners ought to have been put
on notice and admittedly even according to the Court records, the
petitioners have not served at any point of time.
6.Additionally, Mr.P.V.Balasubramaniam, learned Senior Counsel
would contend that the publication has been effected by the respondent-
decree holder, without even an order being passed by the Court under Order
V Rule 20 of CPC, directing publication to be effected. He would therefore
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contend that there is a material irregularity committed in the entire process
of attempting to serve the revision petitioners and consequently, the Court
ought to have condoned the delay insofar as CRP.No.5041 of 2025 and
allowed the application to set aside the ex-parte insofar as CRP.No.5044 of
2025.
7.Mr.P.V.Balasubramaniam, learned Senior Counsel would further
state that the petitioners got knowledge of the proceedings only when they
received notice in the execution petition filed before the Delhi Courts and
immediately, the applications have been taken out to recall the ex-parte
decree passed in the Commercial Suit here. He would further state that the
Commercial Court has, in fact, accepted the explanation of the revision
petitioners, but however, ultimately, non-suited the petitioners only on the
ground that they have not been able to substantiate the date of knowledge of
the ex-parte decree.
8.In this regard, Mr.P.V.Balasubramaniam, learned Senior Counsel
would invite my attention to the email communication dated 29.01.2025
filed by the revision petitioners, pointing out that the said email
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communication was in fact exhibited before the Court in I.A.No.2 of 2025
and received by the Court on 30.07.2025 as well.
9.Taking me through the contents of the email communication,
Mr.P.V.Balasubramaniam, learned Senior Counsel would submit that the
respondent-decree holder had sent the email communication, referring to the
execution petition filed before the Delhi High Court and also the same being
filed in pursuance of the decree passed by this Court on 24.11.2023. The
said email communication forms the basis of the claim of the revision
petitioners with regard to the date of knowledge of the ex-parte decree. The
learned Senior Counsel would therefore state that when the Commercial
Court has not adverted its attention to the relevant material evidence
produced by the petitioners and proceeded to erroneously render a finding
that the petitioners have not been able to substantiate the date of knowledge.
He would therefore state that the impugned order has to be necessarily set
aside and an opportunity be given to the petitioners to contest the suit on
merits. He would therefore pray for the revisions being allowed.
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10.Per contra, Mr.Srinath Sridevan, learned Senior Counsel appearing
for the 1st respondent, decree holder would submit that insofar as
CRP.No.5041 of 2025, he would contend that this revision applies to a
different set of defendants, who have straight away challenged the dismissal
of an application under Order IX Rule 13 of CPC. He would submit that the
said order is appealable under Order 43(1) of CPC r/w Section 13(1) of the
Commercial Courts Act and only a CMA would lie as against the rejection
or dismissal of an application under Order IX Rule 13 of CPC. He would
therefore state that the revision itself is not maintainable and the said
revision has to be dismissed.
11.Coming to the other revision in CRP.No.5044 of 2025, it is the
contention of Mr.Srinath Sridevan, learned Senior Counsel that the
petitioners had sworn to an affidavit as if they never knew about even the
institution of the suit in the first place and pointing to the fact that the
petitioners had entered appearance through counsel even before this Court
on the Original Side, where the suit was originally instituted, he would
submit that the petitioners have filed a false affidavit and therefore they are
not entitled to any indulgence.
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12.As regards the effecting of paper publication, without orders of the
Court, Mr.Srinath Sridevan, learned Senior Counsel would submit that it is
only an infirmity which can be corrected and has in fact been corrected
since the plaintiff-decree holder has proceeded to cause publication in
English Dailies, both in Chennai as well as New Delhi, where the
petitioners are carrying on business and the paper publications that have
been filed in proof of such effecting substituted service, have been accepted
and acted upon by the Court and in such circumstances, he would submit
that the infirmity cannot be held to be fatal or materially irregular, in order
to enable the petitioners to have the ex-parte decree set aside. Mr.Srinath
Sridevan, learned Senior Counsel would further state that even Order V
Rule 20 of CPC does not contemplate an application to be filed, seeking
permission of the Court for effecting publication and therefore, this cannot
be a ground to set aside the ex-parte decree or to condone delay, when the
petitioners themselves have failed to make out sufficient cause for their non
appearance, especially, after having been served with summons and entered
appearance before this Court.
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13.Mr.Srinath Sridevan, learned Senior Counsel would further state
that as diligent litigants, the petitioners ought to have followed up the case
with their counsel and cannot plead that they were not aware of what all
transpired for close to 25 years and he would therefore state that all this
weighed in the mind of the Commercial Court in dismissing the applications
filed by the revision petitioners. He would therefore pray for dismissal of
both the revisions.
14.I have carefully considered the submissions advanced by the
learned Senior Counsel on either side.
15.Though the petitioners have filed an affidavit, as if they never
even knew about the very institution of the suit, across the bar it is fairly
admitted by Mr.P.V.Balasubramaniam, learned Senior Counsel that
summons were in fact originally served before this Court and some of the
defendants have even chosen to enter appearance through counsel. It is also
an admitted fact that pending the suit before this Court in the Original Side,
on account of enhancement of pecuniary jurisdiction of the District Courts,
the suit was transferred to the file of the City Civil Court and again, it has
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been transferred to the Commercial Court and renumbered as C.O.S.No.833
of 2022.
16.It is not in dispute that service was effected on the revision
petitioners only by way of publication. The relevant adjudications for
deciding these revisions are as follows:
(i) On 21.10.2021, the VII Additional City Civil Court
has listed the suit for the first time and has ordered notice to
the parties and their counsel, returnable by 22.11.2021.
(ii) On 22.11.2021, a new counsel has undertook to
file vakalat for the plaintiff. Court notice was ordered to the
defendants side by 20.12.2021.
(iii) On 20.12.2021, the counsel who undertook to file
vakalat for the plaintiff has entered appearance and the suit
was adjourned to 27.01.2022, awaiting service on the
defendants side.
(iv) On 27.01.2022, finding that the notice sent to the
defendants was returned with an endorsement ''left, no such
person'', the suit was adjourned to 01.03.2022 as service was
pending.
(v) On 01.03.2022, the plaintiff was directed to serve
private notice to the defendants, returnable by 28.03.2022.
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(vi) On 28.03.2022, the plaintiff was granted further
time to effect private notice by 18.04.2022.
(vii) On 18.04.2022, private summons to the
defendants were ordered returnable by 24.05.2022.
(viii) On 24.05.2022, noticing that the Commercial
Courts were constituted on 23.04.2022, the entire records
were indexed and sent to the Commercial Court and the
counsel and the parties were directed to appear on
20.06.2022 before the Commercial Court on 26.06.2022.
(ix) Fresh summons to the defendants were ordered
through Court and post, returnable by 22.08.2022.
(x) On 22.08.2022, finding that private notice was
returned 'unserved', the Commercial Court directed steps to
be taken for substituted service, returnable by 28.10.2022,
with the next purpose as 'batta'. However, on 28.10.2022,
the plaintiffs have filed affidavit of service, enclosing
publications effected in both Chennai and Delhi editions and
receiving the said publications, the defendants were called
and set ex-parte and the suit was posted for recording ex-
parte evidence on 28.11.2022.
Thus it is clear from the above that, at no point of time, there was any
proper service of notice on any of the petitioners, before the City Civil
Court as well as Commercial Court.
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17.As rightly contended by Mr.P.V.Balasubramaniam, learned Senior
Counsel for the petitioners in both the revision petitions, even assuming the
defendants had received summons and some of them had chosen to appear
even before this Court, when the suit came to be transferred to the file of the
City Civil Court and again to the Commercial Court, the petitioners were
certainly entitled to notice, since otherwise they will not be in a position to
even enter appearance in the absence of the correct number of the suit and
also the hearing date.
18.In fact, the trial Court has accepted the reasons assigned by the
revision petitioners in finding that once the petiitoners were called and set
ex-parte, only pursuant to paper publications being effected, it was open to
the petitioners to plead date of knowledge, in order to have the delay
condoned and also to set aside the ex-parte decree. The trial Court having
rightly found that the reckoning date can be taken as the date of knowledge,
proceeded to find that the petitioners have not produced any document to
show that they got knowledge only on 22.01.2025 or later and on that
ground alone, the petitioners have been non-suited.
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19.In fact, at paragraph No.13, the Commercial Court specifically
finds fault with the petitioners for not filing the emails through which they
alleged to have got notice about execution proceedings, which constrained
them to take out the applications, which are under challenge in these
revisions.
20.On perusal of records, it is seen that the said email communication
has in fact been filed by the revision petitioners and the same has also been
received by the Court on 30.07.2025 as well. Without noticing the same, the
Commercial Court has proceeded to render adverse findings and non-suited
the petitioners only on the ground that no document was filed to substantiate
the date of knowledge.
21.In view of the above, the findings of the trial Court that the
petitioners have not established the date of knowledge is clearly perverse
and contrary to record. Unfortunately, the Commercial Court has not
considered the email communication filed by the petitioners, on which they
bank on to claim that they had date of knowledge of the ex-parte decree
only from the said e-mail. In the light of the above, when the Commercial
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Court had accepted the reasons assigned to explain the reasons for non-
appearance and the delay on that part in filing the application to set aside
the ex-parte decree and proceeded to dismiss the aplication only on the
ground of not substantiating the plea of date of knowledge, it is found
contrary to the record available even before the Commercial Court. The
petitioners are certainly entitled to the relief.
22.In fact, Mr.P.V.Balasubramaniam, learned Senior Counsel for the
respondent would also rely on the decision of this Court in V.Lakshmi Vs.
R.Veerabathiran in CRP.[NPD].No.3854 of 2013 dated 04.02.2014, where
this Court held that when summons had not been served on the defendants,
the trial Court could not have passed an ex-parte decree and that the ex-
parte decree was a material irregularity and illegal exercise of jurisdiction
itself. This Court, in fact, held that such material irregularity could have
been corrected, even when an application under Section 5 of the Limitation
Act came to be filed, seeking condonation of delay in filing the application
under Order IX Rule 13 of CPC. On this ground as well, the petitioners are
entitled to succeed in the revision petitions. Even otherwise, when the
procedure under Order V Rule 20 of CPC has not been followed and there
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has been publication effected in newspapers in Chennai edition as well as
New Delhi edition, unilaterally by the respondent/decree holder, the same
would certainly also amount to a material irregularity, which goes to the
root of the matter, thereby entitling the petitioners to have the ex-parte
decree itself set aside.
23.In fact, at no point of time, the defendants were served with
summons after transfer from this Court. It is seen from the above narration
that even after the suit was transferred to City Civil Court, the defendants
were not served with summons at any point of time and even when the suit
was transferred to the Commercial Court as well, they were not served with
any summons. In fact, all these have found favour with the Commercial
Court itself and the petitions have been rejected only on the ground of
failure of the petiitoners to establish the date of knowledge of the ex-parte
decree.
24.In fact, this Court in Ellapuram Panchayat Union, Periapalayam
Vs. Shri Bhavaniammal Devasthanam, reported in 1981 (94) LW 256, held
that whenever there is transfer of a case from one Court to the other, a
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notice to that effect should be given to the parties informing them about the
transfer, though no provision to such effect was found either under the Code
of Civil Procedure or under the Civil Rules of Practice. This decision was
followed by on other decision of this Court in Dayanandhini Vs. K.Mala,
reported in CMA.No.2460 of 2015 dated 14.02.2019, where again, this
Court held that notice was necessary, consequent to transfer of proceedings
and also directed the Registry to circulate the judgment of this Court in
Ellapuram’s case (referred herein supra) to all Civil Courts, with
instructions to issue notice to the parties on transfer of suits, on account of
constitution of new Courts or bifurcation of jurisdiction or transfer of cases
due to the change in pecuniary jurisdiction or territorial jurisdiction or even
in the case of a transfer due to workload.
25.When the Court had only directed steps for substituted service, on
its own accord, the respondent, plaintiff has chosen to cause publication in
newspapers of his choice and has chosen to rely upon the same to have the
defendants set ex-parte and consequently, have the suit also decreed
exparte.
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25.Order V Rule 20 of CPC reads as follows:
“20. Substituted service.—(1) Where the Court is
satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service,
or that for any other reason the summons cannot be served
in the ordinary way, the Court shall order the summons to be
served by affixing a copy thereof in some conspicuous place
in the Court-house, and also upon some conspicuous part of
the house (if any) in which the defendant is known to have
last resided or carried on business or personally worked for
gain, or in such other manner as the Court thinks fit.
1 [(1A) Where the Court acting under sub-rule (1)
orders service by an advertisement in a newspaper, the
newspaper shall be a daily newspaper circulating in the
locality in which the defendant is last known to have actually
and voluntarily resided, carried on business or personally
worked for gain.]
(2) Effect of substituted service.—Service substituted
by order of the Court shall be as effectual as if it had been
made on the defendant personally.
(3) Where service substituted, time for appearance to
be fixed.—Where service is substituted by order of the Court,
the Court shall fix such time for the appearance of the
defendant as the case may require.”
26.No doubt, as contended by Mr.Srinath Sridevan, learned Senior
Counsel for the respondent, Order V Rule 20 of CPC does not contemplate
an application to be taken out seeking permission to effect publication.
However, in the present case, when the Commercial Court itself had
directed the respondent-plaintiff to take steps under Order V Rule 20 of
CPC, it was certainly incumbent upon the plaintiff to have filed an
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application for substituted service. As seen from the letter and spirit of
Order XX Rule 20(1) of CPC, it clearly mandates the satisfaction of the
Court that the Court believes the defendants are keeping out of the way and
avoiding service or for some other reasons, the summons cannot be served
in the ordinary way. In fact, Rule 1(a) also states that the Court which is
ordering service by advertisement in newspaper shall ensure that the
newspaper shall be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided, carried on
business or personally worked for gain. The essense of Rule 20 is therefore
that the Court has to permit advertisement in newspapers only upon
satisfaction that the defendant is evading or avoiding service of summons in
the suit. The orders passed by the Commercial Court do not indicate any
such satisfaction as mandated under Rule 20(1) and no steps have also been
taken pursuant to the order directing the plaintiff to take steps for
substituted service and therefore merely because the respondent/plaintiff has
effected advertisement in newspapers of the plaintiff's choice, it would not
satisfy the requirement of Order V Rule 20 of CPC, in the absence of
specific orders of the Court.
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27.Even for this reason, effecting substituted service on the
petitioners is materially irregular and therefore cannot be acted upon. When
once it is seen that the publication itself has been taken out without any
orders of the Court, pursuant to which alone, the petitoiners have been set
ex-parte and in the light of the petitioners also establishing that they had
date of knowledge only from the email communication and a copy of which
has also been filed before the Court, I see no reason why the petitioners
should be non-suited.
28.Even though Mr.Srinath Sridevan, learned Senior Counsel would
contend that insofar as CRP.No.5044 of 2025, the remedy available is only
by way of appeal to challenge the ex-parte the decree, considering that the
suit has been filed against all the defendants in COS.No.833 of 2022 and the
decree as against the petitioners in CRP.No.5041 of 2025 and that the the
suit being a commercial suit, the very object of expeditious disposal of
commercial disputes has been undermined in the present case because of the
lackdasal attitude of the revision petitioners, I am unable to countenance the
said attractive submissions of Mr.Srinath Sridevan, learned Senior Counsel
for the simple reason that the suit was not filed as a commercial suit in the
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first instance and it was filed as an ordinary money suit before the Original
Side of this Court and subsequently, it was transferred to the file of the City
Civil Court first and much later was taken up as a commercial suit in the
year 2023. Therefore, I am unable to accept the argument of Mr.Srinath
Sridevan, learned Senior Counsel that being a commercial suit, the
petitioners are bound by the strict rigors of the time limits that are
prescribed under the Commercial Courts Act.
29.In view of the findings above that there has been no service of
summons on the revisoin petitioners after the suit was transferred to the City
Civil Court and again when it was transferred to the Commercial Court and
also there being irregular paper publication effected by the plaintiff, even
though the order rejecting the application under Order IX Rule 13 of CPC is
appealable and there is also the order in I.A.No.1 of 2025 which is under
challenge in CRP.No.5041 of 2025 is only an application seeking
condonation of delay, when the foundation of the ex-parte decree itself is
found to be unilateral, causing of advertisement in newspapers of the choice
of the respondent-plaintiff, this Court exercising power under Article 227 of
Constitution of India is certainly entitled to correct such material
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irregularity and in order to avoid further delay, which would only cause
prejudice and injustice to both parties, I am inclined to allow the revision
petitions, with a direction to the Commercial Court, Egmore, to formally
number the application under Order IX Rule 13 of CPC insofar as the
defendants 9 and 10 are concerned and to allow the same and expedite
disposal of the suit by adhering to the following time lines.
(i) Pleadings shall be completed by 28.11.2025.
(ii) Issues shall be framed by 05.12.2025.
(iii) The Commercial Court, Egmore, shall schedule the case
management and ensure that the suit is disposed of within a period of six
months from the date of the first case management hearing.
30.In fine, the Civil Revision Petitions are allowed. The orders dated
01.09.2025 passed by the Principal Commercial Court at Egmore, Chennai
in I.A.Nos.1 & 2 of 2025 in C.O.S.No.833 of 2022, are set aside. There shall
be no order as to costs. Connected Civil Miscellaneous Petitions are closed.
21.11.2025
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
Index : Yes / No
ata
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P.B. BALAJI,J.
ata
To
The Principal Commercial Court at Egmore, Chennai.
Pre-delivery order made in
CRP.Nos.5041 & 5044 of 2025
& CMP.Nos.25445 & 25451 of 2025
21.11.2025
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