A defendant's absence in court must be justified by clear evidence of efforts made to attend; mere claims of personal difficulties are inadequate.

Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 13 - Commercial Courts Act, 2015 - Application for setting aside ex parte decree - Defendant's absence not justified; court emphasized necessity for substantial justice without undermining legal technicalities - Presumption and burden of proof on service of summons discussed (Paras 16-18).

(B) Sufficient cause for absence - Must be genuine efforts made by the defendant to attend proceedings - Court stressed need for irrefutable evidence of circumstances preventing attendance (Paras 10-11).

Facts of the case:
The defendant claimed unawareness of suit proceedings, stating family health issues hindered participation.

Findings of Court:
The court found no adequate justification for the defendant's absence and reiterated strict compliance under the Commercial Courts Act.

Issues: The main issue was whether sufficient cause existed for the defendant's absence in court proceedings.

Ratio Decidendi: The court held that a mere claim of personal difficulties was insufficient without evidence demonstrating efforts to appear (Paras 10-11).

Result: Application rejected.

Table of Content
1. application to set aside ex parte order. (Para 1 , 2 , 3)
2. counsel’s arguments on defendant's absence. (Para 4 , 9)
3. court's analysis on presumption of service. (Para 5 , 6 , 7 , 8 , 11)
4. rejection of application and conclusion. (Para 12 , 13)

ORDER (Oral)

I.A. 17309/2022

1. This is an application by defendant under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside order dated 6th September 2022, whereby CS(COMM) 543/2021 instituted by the plaintiff, has been decreed in the plaintiff's favour, ex parte.

2. Prior thereto, by order dated 15th February 2022, this Court had, noticing the fact that the defendant had been served by speed post as well as email and had, nonetheless, not appeared, proceeded against the defendant ex parte.

3. This application avers that the defendant remained unaware of the institution and pendency of the present suit and came to know of the passing of the judgment and decree dated 6th September 2022 only when, consequent to directions issued in the said judgment, a local commissioner appointed by this Court visited the premises of the applicant-defendant.

4. Ms. Nupur Grover, learned Counsel for the defendant has reiterated this contention and has sought a sympathetic view from the Court, submitting that there was no reason for her client to remain absent from the proceedings, if he was actually aware of their pendency. She has placed reliance on the following passages from the judgment of the Supreme Court in Parimal v. Veena, (2011) 3 SCC 545.

"15. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr., (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054 ).

16. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

PRESUMPTION OF SERVICE BY REGISTERED POST & BURDEN OF PROOF:

17. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010(12) SC 287.

18. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this Court held as under:

"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to ac

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