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2024 Supreme(Online)(MAD) 10981
HIGH COURT OF MADRAS
V. Sivagnanam, J
Axis Global Automation – Appellant
Versus
Tonglit Autogistic Private Limited – Respondent
CRP.No.281 of 2024
For the Appellants/Petitioners: V. Subramanian
A petition under Order IX Rule 7 of the CPC to set aside an ex-parte order is maintainable in a commercial suit because the Commercial Courts Act, 2015 does not preclude its application, nor does it provide an appeal for such orders under Order 43 CPC.
Headnote:(A) Commercial Courts Act, 2015 - Applicability of CPC - Setting aside ex-parte order - Since the Commercial Courts Act does not preclude the applicability of Order IX Rule 7 of the Code of Civil Procedure, 1908, a petition to set aside an ex-parte order is maintainable in a commercial suit, especially when such order is not appealable under Order 43 of the CPC as required by Section 13 of the Commercial Courts Act. (Para 5, 7)
(B) Section 13, Commercial Courts Act - Appeals - Scope of appealable orders - Appeals against orders of a Commercial Court lie only if the orders are specifically enumerated under Order 43 of the CPC; in the absence of such enumeration for ex-parte orders, a petition under Order IX Rule 7 CPC remains the appropriate remedy. (Para 6, 7)
Issues: Whether a petition under Order IX Rule 7 of the CPC for setting aside an ex-parte order is maintainable in a commercial suit under the Commercial Courts Act, 2015.
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India to issue a direction for numbering and taking on file of the petition in IA SR No.14260/2023 filed by the petitioners/defendants for setting aside the exparte order, under Order IX Rule 7 of CPC, pending on the file the Principle District Court (Commercial Court) at Chengalpattu and with further direction to dispose the same on merits, in accordance with law.
ORDER
This Civil Revision Petition has been filed to issue a direction for numbering and taking on file of the petition in IA SR No.14260/2023 filed by the petitioners/defendants for setting aside the exparte order, under Order IX Rule 7 of CPC, pending on the file the Principle District Court (Commercial Court) at Chengalpattu and with further direction to dispose the same on merits, in accordance with law.
2. The petitioners herein are the defendants and the respondent herein is the plaintiff in the commercial suit in COS No.156/2022, which was filed for recovery of money and damages. In that suit, the petitioners/defendants were set exparte on 11.08.2022 and the case was posted to 18.09.2023. Hence, the petitioners have filed a petition to set aside the exparte order, and it was returned with a query as " how this petition is maintainable to be stated in Commercial Act". Though the petitioners represented the petition with necessary details, again the petitioner was returned with the same endorsement. Aggrieved over the return of the above petition under Order IX Rule 7 of CPC, this civil revision petition has been filed.
3. Heard the learned counsel for the petitioner and I have perused the materials on record.
4. Admittedly, the petitioners were set exparte on 11.08.2023 and to set aside the exparte order, they filed a petition under Order IX Rule 7 of CPC. However, it was returned on 17.12.2023, stating that how this petition is maintainable under Order IX Rule 7 of CPC in commercial Act and only appeal can lie.
5. It is argued by the learned counsel for the petitioners that, Section 13 of Commercial Courts Act, 2015, clearly prescribed the kind of orders, against which appeal would lie; and in this regard, the proviso under Section 13(1-A) of the Act clearly states that the appeal shall lie on such orders, specifically enumerated under Order 43 of CPC; but, while looking at Order 43 of CPC, it does not provide an appeal from the order of setting exparte under Order IX Rule 6(a) of CPC. It is further argued by the learned counsel for the petitioners that, there is no provision in the Commercial Courts Act, 2015, speaks about setting exparte or setting aside the exparte order and at the same time, the Act, does not preclude applicability of Order IX Rule 7 of CPC in the commercial suit.
6. At this juncture, it is worthwhile to extract Section 13 of the Commercial Courts Act, 2015, which runs as follows.
13. Appeals from decrees of Commercial Courts and Commercial Divisions.—(1) [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]
(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a
