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NC: 2023:KHC:25066-DB
COMAP No.491 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
COMMERCIAL APPEAL NO.491 OF 2022
BETWEEN:
1.
TCI EXPRESS
REP. BY ABHISHEK MISHRA
LEGAL OFFICER
100, D DEVARAJ URS TRCK
TERMINAL INDUSTRIAL SUBURB
YASHAVANTHAPURA
BENGALURU -560 022
REPRESENTED BY ITS MANAGER.
…APPELLANT
(BY SRI. BALARAJ K.N. ADV.,)
AND:
1.
MAXON PRECISION MOTER INDIA PVT LIMITED
NIRAN ARCADE, NO.563/654
SECOND FLOOR, NEW B E L ROAD
RMV SECOND STAGE, BENGALURU -560 094
REPRESENTED BY ITS SUBROGEE/POWER AGENT
M/S. UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE VI
NO.119, SYLVERSTRA ARCADE
EAST PARK ROAD, 11TH CROSS
MALLESHWARAM, BENGALURU -560 003
REPRESENTED BY ITS PRINCIPAL OFFICER.
2.
M/S. UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE VI
NO.119, SYLVERSTRA ARCADE
EAST PARK ROAD, 11TH CROSS
MALLESHWARAM
Digitally
signed by
RUPA V
Location:
High Court
of Karnataka
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NC: 2023:KHC:25066-DB
COMAP No.491 of 2022
BENGALURU -560 003
REPRESENTED BY ITS PRINCIPAL OFFICER.
…RESPONDENTS
(R1 & R2 SERVED)
THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER
ORDER 41 RULE 1 OF CPC R/W SECTION 13(1A) OF THE
COMMERCIAL COURT ACT, 2015 PRAYING TO SET ASIDE THE
ORDER PASSED BY THE LEARNED LXXXIV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-85), COMMERCIAL COURT,
BENGALURU IN COM. MISC. NO.48/2022 DATED 07.11.2022
BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
Mr.Balaraj K.N., learned counsel for the appellant.
None for the respondent though served.
This appeal has been filed under Section 13(1A) of
the Commercial Courts Act, 2015, against an order
dated 07.11.2022 passed by the Commercial Court by
which the application preferred by the appellant under
Order 9 Rule 13 of the Code of Civil Procedure, 1908 for
setting aside the exparte decree dated 01.06.2022 in
Com.O.S.No.727/2021 has been rejected.
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2. Facts necessary for adjudication of this appeal
are
that
the
respondent
filed
a
suit
in
Com.O.S.No.727/2021 seeking recovery of amount of
Rs.8,82,523/-.
The
Commercial
Court
directed
issuance of summons to the appellant on 19.11.2022.
The summons issued to the appellant was received with
an endorsement that he has refused to accept the same.
Thereupon, Commercial Court placed the appellant
exparte on 03.12.2021. Thereafter, the Commercial
Court, by judgment and decree dated 01.06.2022 has
decreed the claim of the respondent. Hence, this
appeal.
3. Learned counsel for the appellant submits that
the procedure prescribed under Order V Rule 17 and 18
of the Code of Civil Procedure while effecting the service
of summons has not been followed. In support of
aforesaid submission, learned counsel for the appellant
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has placed reliance on the judgment of the Hon'ble
Supreme Court in SUSHIL KUMAR SABHARWAL Vs.
GURPREET SINGH AND OTHERS1.
4. We have considered the submission made by the
learned counsel for the appellant and have perused the
record. From perusal of the record, it is evident that the
Commercial Court has not followed the procedure
prescribed under Order V Rule 17 and 18 of the Code of
Civil Procedure, inasmuch as on refusal of the appellant
to receive summons, the summons was not affixed in
the office of the appellant. However, the aforesaid
aspect of the matter has not been appreciated by the
Commercial Court while dealing with the petition filed
by the appellant under Order IX Rule 13 of the Code of
Civil Procedure. Therefore, the exparte judgment and
decree against the appellant cannot be sustained in the
eye of law. It is accordingly quashed.
1 (2002) 2 SCC 377
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The matter is remitted to the Commercial Court.
The Commercial Court shall issue notice to the parties
and thereafter shall proceed to deal with the suit
expeditiously.
Accordingly, the appeal is allowed.
Sd/-
JUDGE
Sd/-
JUDGE
RV
