IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05-12-2025 CORAM THE HONOURABLE MR JUSTICE S. M. SUBRAMANIAM AND THE HONOURABLE MR.JUSTICE C.KUMARAPPAN OSA(CAD) SR No. 115841 of 2024 and C.M.P.No.22440 of 2025 Subash Projects And Marketing Limited, Now called as SPML Infra Limited, Having its Branch Office at Old No.2, New No.28, Opposite to Pachaiyappas College, Kamanathan Street, Kilpauk, Chennai – 60 010.

Appellant(s)

Vs

1.M/s.Esvee Engineering No.31-A/11, North Phase SIDCO Estate, Ambattur, Chennai – 98 Rep. by its partner S.Ganesan, S/o.E.Subramaniam, 9/120, Kamaraj Street, TMP Nagar, Padi, Chennai – 600 050.

2.M/s.Sakthi Engineering., Rep. by its Partner G.Senthilnathan, 519/398, MTH Road, Moogambikai Complex, Varadarajapuram, Ambattur, Chennai – 600 053.

3.M/s.Kathayayeni Engineering, Rep. by its Proprietor H.Anand, H-24, Avenue, Korattur, Chennai – 600 080.

Respondent(s)

For Appellant(s): Mr.G.Ashokapathy for M/s. Pass Associates

ORDER

(Order of the Court was made by S.M.SUBRAMANIAM, J.)

Under assail in the Original Side Appeal presented is the order dated

30.07.2024 passed by the learned Single Judge of this Court in A.No.2826 of

2024 in C.S.No.614 of 2013.

2. The appellant in the present Original Side Appeal is the 1^st defendant in C.S.No.614 of 2013 instituted by the 1^st respondent herein for recovery of money. The suit is treated as commercial suit and listed before the Commercial Division Court of the Original Side of the High Court of Madras. Admittedly an ex parte decree was passed on 06.08.2019 in C.S.No.614 of 2013. The appellant filed an application to set aside the ex parte decree dated 06.08.2019. Three applications have been instituted one to set aside the ex parte decree dated 06.08.2019 and another to condone the delay of 140 days in filing the application to set aside the ex parte decree and another application to condone the delay of 1368 days in re-presenting the application. The learned Single Judge allowed the application filed seeking to condone the delay in re-presentation on condition that the appellant shall pay a sum of Rs.1,00,000/- as costs. The appellant has paid the costs. Thereafter, the application seeking to condone the delay of 140 days in filing the application to set aside the ex parte decree was taken up for hearing. The said application was also allowed on 26.06.2024 on condition that the appellant shall pay a sum of Rs.50,000/- as costs to the credit of Hon’ble Chief Justice Relief Fund on or before 18.07.2024. Thereafter, the matter was directed to be listed under the caption ”for reporting compliance.” The appellant has not complied with the condition by paying the cost amount of Rs.50,000/-. Thus, the learned Single Judge dismissed the application vide order dated 30.07.2024 and the said order is under challenge in the present Original Side Appeal.

3. The Registry has raised an objection regarding maintainability of the Original Side Appeal, on the ground that “as per Section 13 of the Commercial Courts Act appeal shall lie from Commercial Division/ Commercial Courts that are specifically enumerated under Order 43 of the Code of Civil Procedure, 1908. Hence, it may be stated as to how the Original Side Appeal filed against the application to condone the delay in setting aside the ex parte decree is maintainable”.

4. The learned counsel for the appellant would submit that Clause 15 of the Letters Patent in unambiguous terms states that Original Side Appeal would lie against the judgment or order passed by the learned Single Judge of this Court. Therefore, the present Original Side Appeal is maintainable. He would contend that it is an order dismissing the application seeking condonation of delay in respect of the application filed to set aside the ex parte decree and when the order of ex parte decree passed is appealable then the present appeal also deserves to be entertained.

5. The logic put forth on behalf of the appellant is to be considered in the context of the provisions which are app