Case Note & Summary
The case arises from a commercial dispute between the appellants (defendants) and the respondent (plaintiff) concerning the recovery of money for goods supplied. The respondent, engaged in trading plywood, flush doors, and block boards, supplied goods to the appellants between 2018 and 2019. The appellants returned some goods citing quality issues. The respondent acknowledged the return but claimed a balance remained. Initially, a legal notice dated 16.09.2021 sought recovery of Rs. 39,673/- based on three invoices. Subsequently, another notice included three additional invoices, revising the claim to Rs. 8,96,498/-. After adjusting returned goods worth Rs. 1,41,108/-, the principal amount claimed was Rs. 3,87,694/-, with interest at 24% per annum. The respondent filed a summary suit under Order 37 of the Code of Civil Procedure, 1908 (CPC) in the Commercial Court, Ahmedabad, seeking recovery of Rs. 8,96,498/- with interest. The Commercial Court passed an ex-parte decree on 30.04.2025, as the appellants failed to appear. The appellants filed an appeal with a delay of 31 days, along with an application for condonation of delay and a stay application. The High Court considered the delay condonation application and allowed it, finding the explanation satisfactory. In the main appeal, the court examined the service of summons. The appellants contended that they were not served with summons in the prescribed form under Order 37 Rule 3 CPC, which requires the defendant to be served with a copy of the plaint and a summons in Form No. 4 of Appendix B. The court noted that the record did not show that the summons were served in the prescribed form. The court held that in a summary suit, strict compliance with Order 37 Rule 3 CPC is mandatory, and failure to serve proper summons vitiates the ex-parte decree. The court set aside the ex-parte decree and remanded the matter to the Commercial Court for fresh proceedings, directing the appellants to file their appearance and defense within the time allowed by law. The court also disposed of the stay application as infructuous.
Headnote
A) Condonation of Delay - Sufficient Cause - Delay of 31 days in filing appeal explained to satisfaction of court - No notice to respondent required - Delay condoned (Para 1). B) Summary Suit - Order 37 CPC - Service of Summons - Ex-parte Decree - Defendant not served with summons in prescribed form - Decree set aside - Appeal allowed - Commercial Court Act, 2015 - Order 37 Rule 3 CPC - Held that service of summons in summary suit must be in accordance with Order 37 Rule 3 CPC and failure to serve properly renders ex-parte decree liable to be set aside (Paras 3-5).
Issue of Consideration
Whether the delay of 31 days in filing the appeal should be condoned and whether the ex-parte decree passed in a summary suit under Order 37 CPC should be set aside due to improper service of summons.
Final Decision
Delay condonation application allowed. Appeal allowed. Ex-parte decree dated 30.04.2025 passed by the Commercial Court, Ahmedabad in Summary Civil Suit No. 123 of 2024 is set aside. The matter is remanded to the Commercial Court for fresh proceedings. The appellants are directed to file their appearance and defense within the time allowed by law. Civil application for stay disposed of as infructuous.
Law Points
- Condonation of delay
- Summary suit under Order 37 CPC
- Service of summons
- Setting aside ex-parte decree
- Commercial Court Act
- 2015
