M/S. Cadila Healthcare Limited vs Dr. Abburi Ramaiah
2023 Latest Caselaw 2962 Tel

     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE

                                AND

     THE HON'BLE SRI JUSTICE N.V. SHRAVAN KUMAR

                     C.O.M.C.A. No.31 of 2023

JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)


      Mr. D.V. Seetharama Murthy, learned Senior Counsel

appears on behalf of Ms. Shireen Sethna Baria, learned counsel

for the appellant.

      Mr.   Ramesh     Babu    Vishwanathula,      learned   counsel

appears for respondent No.1.

2. With the consent of the parties, the appeal is being heard

finally.

3. This appeal under Section 13(1) of the Commercial Courts

Act, 2015 has been filed against the order dated 26.10.2022

passed by the Commercial Court dismissing the petition filed by

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

Procedure, 1908 ("CPC", for brevity) for setting aside the ex-

parte judgment and decree dated 17.02.2020.

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4. The facts giving rise to filing of this appeal briefly stated

are that respondent No.1/plaintiff filed C.O.S.No.44 of 2017 for

permanent injunction and damages against the appellant and

respondent No.2. The Commercial Court in the aforesaid suit

directed issuance of personal notice to the appellant and

respondent No.2 on 07.06.2017. As per the track report on

record, the appellant has received the notice on 12.06.2017.

On 07.07.2017, respondent No.1 filed proof of service.

5. The Commercial Court by order dated 07.07.2017

proceeded ex-parte against the appellant. Thereafter, the suit

was dismissed for default on 16.08.2019 and was subsequently

restored on 20.08.2019. The Commercial Court eventually

passed an ex-parte judgment and decree on 17.02.2020. The

appellant thereafter filed a petition on 28.12.2020 under Order

IX Rule 13 of CPC on the ground that the appellant derived

knowledge about the ex-parte judgment on receipt of e-mail on

26.10.2022 from respondent No.1/plaintiff. The Commercial

Court, however, by order dated 26.10.2022 has dismissed the

application preferred by the appellant merely on the ground

that on irregular service of summons, an ex-parte judgment and ::3::

decree cannot be set aside provided the appellant has

knowledge of the proceedings.

6. Learned counsel for the appellant submits that the

summons was not served on the appellant. However, the

aforesaid aspect of the matter has not been appreciated.

7. On the other hand, learned counsel for respondent No.1

has supported the order passed by the Commercial Court and

has submitted that the appellant did not participate in the

proceedings and had knowledge about institution of suit by

respondent No.1.

8. We have considered the submissions made on both sides

and perused the record.

9. Admittedly, the suit was dismissed for default on

16.08.2019 and the same was restored on 20.08.2019.

However, after restoration of the suit, no fresh notice has been

issued to the appellant and the learned Judge of the

Commercial Court has pronounced the ex-parte judgment and

decree on 17.02.2020. However, the aforesaid aspect of the

matter has not been appreciated by the Commercial Court.

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After restoration of suit, a notice ought to have been issued to

the appellant. Therefore, the impugned order dated 26.10.2022

cannot be sustained in the eye of law and is hereby set aside.

10. In the result, the appeal is allowed. The ex-parte

judgment and decree dated 17.02.2020 passed in C.O.S.No.44

of 2017 is set aside and C.O.S.No.44 of 2017 is restored to file.

The parties undertake to appear before the Commercial Court

along with a copy of this order on 14.11.2023. The Commercial

Court thereafter shall proceed to deal with the suit

expeditiously.

Miscellaneous applications pending, if any, shall stand

closed.

_____________________ ALOK ARADHE, CJ

__________________________ N.V. SHRAVAN KUMAR, J

Date: 06.10.2023 ES