The court ruled that adequate notice was served to the defendants, and the suit was commercial in nature, but the decree could not be set aside due to alternative remedies available under the Code of Civil Procedure.

JUDGMENT :

Krishna Rao, J.

1. The defendants have filed the present application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 being G.A. No. 5 of 2024 praying for setting aside ex-parte the Judgment and Decree passed by this Court dated 24th March, 2023 in C.S. No. 220 of 2019.

2. Mr. Suman Dutt, Learned Senior Advocate representing the defendants submits that the defendants first time in the Month of March, 2024 received a copy of Execution Case No. 503 of 2023 wherein the defendants first time came to know that this Court has disposed of C.S. No. 220 of 2019 directing the defendants to pay sum of Rs. 53,20,416/-along with interest at the rate of 10% per annum from the date of receipt of final bill till the date of realization of the decretal amount.

3. Mr. Dutt submits that writ of summons was not served upon the defendants and the services of summons upon defendants were improper.

4. Mr. Dutt submits that the plaintiffs have filed the suit as non-commercial suit before the Ordinary Original Civil Jurisdiction of this Court but the alleged dispute between the parties arises out of a Work Order for construction of a building for setting out of a leather factory over a land allotted to the defendants at the Kolkata Leather Complex. He submits that the disputes between the parties are commercial disputes, the plaintiffs ought to have filed the suit before the Commercial Division of this Court and not before the Ordinary Original Civil Jurisdiction.

5. Mr. Dutt submits that the decree passed by this Court in C.S. No. 220 of 2019 dated 24th March, 2023 is without jurisdiction and has to be considered as nullity and non-est.

6. Mr. Arabinda Chatterjee, Learned Senior Advocate representing the plaintiffs submits that the writ of summons was sent to the defendants in the address given in the cause title in both ways i.e. through the Sheriff of this Court as well as through the postal services but with the mala fide intention, the defendants did not receive summons. He submits that thereafter in terms of the order passed by this Court, paper publications were also made but the defendants chose not to enter appearance in the suit and this Court proceeded the suit as an “Un-Defended Suit”.

7. Mr. Chatterjee submits that notice was also affixed in the conspicuous place in the premises of the defendants and conspicuous place of the court premises even then the defendants have not appeared in the suit. Mr. Chatterjee submits that application under Order IX, Rule 13 of the Code of Civil Procedure, 1908 can be made by the defendants if the defendants satisfy this Court that the summons was not served or the defendants were prevented by any sufficient cause from appearing when the suit was called for hearing but in the present case nothing so happened.

8. Mr. Chatterjee submits that for availing the jurisdiction of Commercial Court one has to raise dispute. He submits that dispute means a claim or demand of one side met by contrary claim by another side. He submits that the claim raised by the plaintiffs have not been denied or disputed by the defendants. He submits that merely a failure and inaction to pay which does not lead to the inference of the existence of any dispute and until and unless there is a dispute there cannot be any adjudication by the commercial court. He submits that in the present case, no denial has been raised thus the plaintiffs did not have any opportunity to exhaust the remedy of pre-institution mediation for settling the issue under Section 12A of Commercial Courts Act, 2015. In support of his submissions, he has relied upon the judgments in the case of Standard Chartered Grindlays Bank Ltd. Vs. Union of India reported in (2005) 12 SCC 738, Canara Bank Vs. National Thermal Power Corporation reported in (2001) 1 SCC 43 and Major (retd.) Inder Singh Rekhi Vs. Delhi Development Authority reported in (1988) 2 SCC 338.

9. Mr. Chatterjee submits that even assuming but not admitting the decree has been passed by the