Case Note & Summary
The appellant, BVM Finance Private Limited, was the original defendant No.1 in a commercial suit filed by the respondent No.1, Vistra ITCL (India) Ltd., along with other respondents. The suit was decreed ex-parte against the appellant on 27 November 2020. The appellant filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside the ex-parte decree, which was dismissed by the Commercial Court. Aggrieved, the appellant filed the present appeal. The court considered whether the appellant had shown sufficient cause for its non-appearance on the date of hearing and for the delay in filing the application. The appellant argued that it had not received the summons and that there was a bona fide mistake. However, the court found that the appellant was served with the summons and failed to appear without any valid explanation. The delay in filing the application was also not satisfactorily explained. The court held that the appellant did not meet the requirements of Order IX Rule 13 CPC and dismissed the appeal, confirming the order of the Commercial Court.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Order IX Rule 13 CPC - Sufficient Cause - The appellant failed to appear on the date fixed for hearing despite service of summons. The court held that the appellant did not provide a valid explanation for its non-appearance or for the delay in filing the application to set aside the decree. The appeal was dismissed as no sufficient cause was shown. (Paras 1-10)
B) Commercial Courts Act, 2015 - Commercial Suit - Ex-parte Decree - Delay - The appellant's application to set aside the ex-parte decree was filed after a delay of 30 days. The court noted that the appellant did not explain the delay satisfactorily. The appeal against the order refusing to set aside the decree was dismissed. (Paras 1-10)
Issue of Consideration
Whether the appellant had shown sufficient cause for its non-appearance on the date of hearing and for the delay in filing the application to set aside the ex-parte decree.
Final Decision
The appeal is dismissed. The order of the Commercial Court refusing to set aside the ex-parte decree is confirmed.
Law Points
- Order IX Rule 13 CPC
- Sufficient cause for non-appearance
- Delay in filing application
- Commercial Court
- Ex-parte decree
- Setting aside decree
Case Details
2020 LawText (BOM) (10) 69
LD-VC-APPEAL NO. 294 OF 2020
Mr. Fredun De Vitre, Senior Advocate a/w. Ms. Fereshte D. Sethna, Mr. Adhiraj Malhotra, Mr. Shreyash Taparia, Ms. Rashi Verma and Ms. Aboli Mandlik i/b. DMD Advocates for the Appellant/ Applicant; Mr. Dinyar Madon, Senior Advocate a/w. Mr. Sharan Jagtiani, Senior Advocate a/w. Mr. Ziyad Madon a/w. Mr. Vishal Shriyan for the Respondent No.1; Mr. Erach Kotwal with Mr. Shantanu Singh for Respondent No.15
BVM Finance Private Limited
Vistra ITCL (India) Ltd. & Ors.
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Nature of Litigation
Appeal against order refusing to set aside ex-parte decree in a commercial suit.
Remedy Sought
The appellant sought to set aside the ex-parte decree passed against it in the commercial suit.
Filing Reason
The appellant failed to appear on the date of hearing and the suit was decreed ex-parte. The appellant filed an application under Order IX Rule 13 CPC to set aside the decree, which was dismissed.
Previous Decisions
The Commercial Court dismissed the appellant's application to set aside the ex-parte decree.
Issues
Whether the appellant had shown sufficient cause for its non-appearance on the date of hearing.
Whether the appellant had shown sufficient cause for the delay in filing the application to set aside the ex-parte decree.
Submissions/Arguments
The appellant argued that it did not receive the summons and that there was a bona fide mistake.
The respondent argued that the appellant was duly served and failed to appear without any valid explanation.
Ratio Decidendi
The appellant failed to show sufficient cause for its non-appearance on the date of hearing and for the delay in filing the application to set aside the ex-parte decree. Therefore, the application under Order IX Rule 13 CPC was rightly dismissed.
Judgment Excerpts
The appellant has not shown any sufficient cause for its non-appearance on the date fixed for hearing.
The appeal is devoid of merits and is dismissed.
Procedural History
The respondent No.1 filed a commercial suit against the appellant and others. The suit was decreed ex-parte against the appellant on 27 November 2020. The appellant filed an application under Order IX Rule 13 CPC to set aside the decree, which was dismissed by the Commercial Court. The appellant then filed the present appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 13
