The court upheld the principle that an ex-parte decree should not be set aside if the defendant has no valid defence, and emphasized the need for expediency in commercial dispute resolutions.

JUDGMENT

Sanjeev Sachdeva, J. (ORAL)

CM APPL.366/2023 (exemption)

Exemption is allowed subject to all just exceptions.

RFA(COMM) 1/2023 & CM APPL. 364/2023 & 365/2023

1. Appellant impugns judgment dated 19.02.2020 whereby an ex-parte decree has been passed against the appellant of eviction in respect of tenanted premises No. C-42, Wazirpur Industrial Area, New Delhi and also of awarding damages at the rate of Rs.30,000/- per day starting from January, 2019 till vacation of the suit property.

2. It may be noticed that appellant had filed an application under Order IX Rule 13 which was dismissed by order dated 26.10.2020 against which appellant filed an appeal which was listed before a Division Bench of this Court being FAO(COMM) 20/2021.

3. By a detailed judgment dated 20.05.2021 the appeal was dismissed, however, with regard to the ex-parte decree (impugned herein) the same was modified holding as under:

"26. Once it is found that the appellants/defendants, as per their lease deed, have no defence to the claim which has been decreed ex-parte, this Court would not mechanically set aside the decree. An ex-parte decree is to be set aside only if grounds therefor are made out and if such setting aside is necessary to enable the defendant to contest the claim. However if the defendant has no defence, the ex-parte decree is not to be set aside to keep the Courts and the Advocates busy.

27. Though the counsel for the respondent/plaintiff has no instructions to agree to reduction in the rate at which mesne profits had been decreed and seeks time therefor, but the need to keep the matter pending therefor, is not felt. A perusal of the ex-parte judgment and decree shows that there was no material and evidence before the Commercial Court for awarding mesne profits at a rate higher than the agreed rate of rent and the same has been done merely on the basis of ex-parte evidence of the respondent/plaintiff and on the basis of clause in the registered lease deed whereunder the appellants/defendants had agreed to pay mesne profits @ Rs.50,000/- per day. It is felt that the interest of justice would be served, if the ex-parte decree is modified, by reducing the rate of mesne profits from that awarded of Rs.30,000/- per day to that of Rs.7,18,750/- per month which the appellants/defendants had agreed to pay under the registered lease deed.

28. We are conscious that the ex-parte decree is not in appeal before us and it is only the dismissal of the application for setting aside the ex-parte decree which is in appeal in these proceedings; however the whole purport of enacting the Commercial Courts Act, 2015 was to enable the Courts to decide the commercial disputes expeditiously, without being slave to the procedure and it is felt that if the aforesaid course is not followed in this appeal, it will do immense disservice to the change brought about by the Legislature. Reference in this regard can be made to Ambalal Sarabhai Enterprises Limited Vs. K.S. Infraspace LLP, (2020) 15 SCC 585, Government of Maharashtra (Water Resources Department) Vs. Borse Brothers Engineers & Contractors Pvt. Ltd., 2021 SCC OnLine SC 233 and Kandla Export Corporation Vs. OCI Corporation, (2018) 14 SCC 715.

29. Before parting with this judgment, we may also deal with the other two applications filed yesterday. The documents filed with one of the applications have already been considered above and the application therefor is thus allowed. The third application is for bringing on record the list of inventories enclosed therewith. It is stated that the items in the said inventory are lying in the