CS(COMM) 403/2018 Page 1 of 28

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(COMM) 403/2018, I.A. 39008/2024, I.A. 39009/2024, I.A.

39010/2024 & I.A. 43736/2024

STRIX LTD. .....Plaintiff

Through: Ms. Anuradha Salhotra, Mr. Anirudh

Bakhru, Ms. Ekta Sarin, Mr. Zeeshan

Khan, Mr. Amit Ranjan and Ms.

Vijay Laxmi Rathi, Advocates

Email: litigation@rahulchaudhry.com

versus

MAHARAJA APPLIANCES LIMITED .....Defendant

Through: Mr. Sudhanshu Batra, Mr. Arvind K

Gupta, Mr. Rahul Mangla, Mr.

Abhishnmaet Gupta, and Mr. Arun,

Advocates

Mob: 9899969669

Email: mail@rahulmangla.com

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

% 11.02.2025

MINI PUSHKARNA, J:

I.A. No. 39008/2024 (Seeking setting aside of ex-parte judgment and

decree dated 20

th

October, 2023)

I.A. No. 39009/2024 (Seeking condonation of delay of 110 days in re-

filing the application)

I.A. No. 39010/2024 (Seeking condonation of delay of 156 days filing the

application)

CS(COMM) 403/2018 Page 2 of 28

I.A. 43736/2024 (Seeking stay of execution proceedings before the Trial

Court)

1. The present suit was decreed ex-parte in favour of the plaintiff and

against the defendant vide judgment dated 20

th

October, 2023, whereby, this

Court had awarded damages to the tune of Rs. 50,00,000/- and costs to the

tune of Rs. 31,44,925/-, in favour of the plaintiff payable by the defendant,

within three months of passing of the decree, failing which, the plaintiff was

entitled to recover the said amount along with 7% simple interest from the

date of the judgment.

2. I.A. No. 39008/2024 has been filed by the defendant/ applicant under

Order IX Rule 13, read with Section 151 of the Code of Civil Procedure,

1908 (“CPC”), seeking to set aside the ex-parte judgement and decree dated

20

th

October, 2023. Case, as canvassed by the defendant in the present

application, is as follows:

2.1 The defendant was unaware about passing of the judgment and decree

dated 20

th

October, 2023 by this Court. The defendant came to know about

the same only on 30

th

November, 2023, upon receipt of a legal notice issued

by counsel for the plaintiff.

2.2 The defendant’s earlier counsel, in the absence of any instructions,

sought discharge from the matter, as mentioned in order dated 12

th

August,

2014, and this Court issued notice to the defendant/applicant to inform them

of the development.

2.3 The defendant had led evidence during the proceedings, and the

matter was subsequently listed in the “Finals” category, as noted in the order

dated 21

st

January, 2015. Despite the case being listed for final hearing, it

did not proceed to a conclusion, as the division of Maharaja Whiteline

CS(COMM) 403/2018 Page 3 of 28

Industries Pvt. Ltd., was sold and taken over by M/s SEB Internationale SAS

(a French company). As part of the transaction, all staff, including Sh. Sujeet

Yadav, who had been handling the litigation, was transferred to the

acquiring company. This organizational shift left the defendant unaware of

the pendency of these proceedings.

2.4 Upon inspecting the court file, the defendant found that from 2014

until the passing of the decree, the case was at the stage of final arguments,

and no explicit ex-parte proceedings were ordered against the defendant by

this Court. This procedural gap further contributed to the defendant’s lack of

awareness regarding the case’s progress.

2.5 The Commercial Courts Act, 2015, was introduced during this period,

and as per the notification issued by this Court, the suit was renumbered as

CS (COMM) No. 403/2018 through the order dated 02

nd

February, 2018.

This administrative change added another layer of complexity, further

obscuring the defendant’s ability to track the case.

2.6 As per the order dated 22

nd

March, 2022, notices were issued to the

defendant/applicant. However, the Email ID listed on the Ministry of

Corporate Affairs (MCA) website belonged to the erstwhile entity, Maharaja

Whiteline Industries Pvt. Ltd., and not the current management under M/s

SEB Internationale SAS. Thus, it is the case of the defendant/applicant, that

it never received the notice, leaving them uninformed about the

developments in the matter.

3. I.A. No. 39010/2024 has been filed by the defendant/ applicant under

Section 5 of the Limitation Act, 1963 seeking condonation of delay of 156

days in filing the application, i.e., I.A. No. 39008/2024 for setting aside the

CS(COMM) 403/2018 Page 4 of 28

ex-parte judgement and decree dated 20

th

October, 2023. Case, as canvassed

by the defendant in the present application, is as follows:

3.1 The defendant had been regularly appearing in the matter and had

even cross-examined the witness of the plaintiff. The parties were thereafter

in talks of settlement, however, the same failed.

3.2 The defendant’s witness could not attend the cross-examination on

21

st

May, 2014, as the management of the defendant company was

transferred to M/s SEB Internationale SAS, which is a French company,

resulting in the closure of the defendant’s right to lead evidence.

3.3 On 12

th

August, 2014, the defendant’s counsel sought discharge as he

was not receiving instructions in the matter. The said request was accepted

and the counsel was discharged. However, he was directed to inform the

defendant by way of written communication.

3.4 The defendant became aware of the judgement and decree dated 20

th

October, 2023, only upon receiving a legal notice dated 30

th

November,

2023, whereby, the suit was decreed against the defendant for Rs.

81,44,925/-.

3.5 Upon learning of the decree, the defendant contacted the previous

counsel to retrieve the case papers. After receiving the papers, the defendant

filed an inspection application, and the file was provided via the e-inspection

portal.

3.6 The defendant’s counsel, however, was unavailable from 15

th

February, 2024, due to personal reasons, as his son was getting married on

27

th

February, 2024. He resumed work on 04

th

March, 2024, after the

completion of the wedding ceremonies.

CS(COMM) 403/2018 Page 5 of 28

3.7 As per law, the defendant ought to have filed the application under

Order IX Rule 13 CPC on or before 19

th

November, 2023, however, due to

the aforesaid circumstances, the application was delayed.

3.8 The present application has been filed with a delay of 156 days, which

is neither deliberate nor intentional, but was caused by the circumstances

outside the control of the defendant.

4. I.A. No. 39009/2024 has been filed by the defendant/ applicant

seeking condonation of delay of 110 days in re-filing the application, i.e.,

I.A. 39008/2024. Case, as canvassed by the defendant in the present

application, is as follows:

4.1 That upon acquiring knowledge of the decree, the application, I.A. No.

39008/2024, for setting aside the ex-parte judgment and decree, was filed on

25

th

April, 2024.

4.2 The Registry marked defects in the application on 26

th

April, 2024,

and the same were communicated to the counsel via email. However, the

clerk of the counsel, i.e., Sh. Prateek Rana, was unable to address the defects

as his mother suffered an accident and required medical treatment, in

support of which, the medical documents have been filed.

4.3 During this period, the physical file of the application was misplaced

at the Communication Centre, i.e., photocopy shop in the High Court

premises. Despite efforts by the counsel in June and July 2024, the file could

not be located immediately.

4.4 After Sh. Prateek Rana resumed work following his mother’s

treatment and surgery on 17

th

August, 2024, the file was traced, which

enabled the counsel to re-file the application.

CS(COMM) 403/2018 Page 6 of 28

4.5 Reliance has been placed on the judgment of Supreme Court in the

case of Collector, Land Acquisition, Anantnag & Anr. Versus Mst. Katiji

& Ors., (1987) 2 SCC 107, to submit that, it has been held that the refusal to

condone the delay can result in a meritorious matter being thrown out at the

very threshold leading to cause of justice being defeated, while condoning

the delay would have decided the case on merits after hearing the parties.

4.6 Further, reliance is placed upon judgment in the case of Rani Kusum

(Smt) Versus Kanchan Devi (Smt) & Ors., (2005) 6 SCC 705, wherein, it

has been held that, all the rules and procedure are the handmaid of justice

and courts must interpret procedural provisions flexibly, unless explicitly

restricted by statute, to address extraordinary situations and uphold justice.

4.7 The delay of 110 days in re-filing the application was neither

deliberate nor intentional but arose due to the circumstances outside the

control of the defendant.

5. I.A. No. 43736/2024 has been filed by the defendant/ applicant under

Order XXXIX Rules 1 and 2 read with Section 151 of CPC, seeking a stay

on further proceedings in Execution Petition bearing no. EX. (COMM.) No.

56/2024, pending before the District Judge (Commercial Court-02), West

District, Tis Hazari Courts, Delhi, along with the order dated 09

th

October,

2024 passed by the District Judge (Commercial Court-02), West District, Tis

Hazari Courts, Delhi, till the disposal of I.A. No. 39008/2024. Case, as

canvassed by the defendant in the present application, is as follows:

5.1 The defendant never received any notice regarding the pendency of

the present suit in compliance of the order dated 22

nd

March, 2022. Great

harm and prejudice would be caused to the defendant as decree of damages

of Rs. 50,00,000/- has been passed against the defendant.

CS(COMM) 403/2018 Page 7 of 28

5.2. The present application has been filed before this Court upon receipt

of notice from the Executing Court. However, the Executing Court is

continuing with the execution proceedings, which would render the

application filed before this Court for setting aside the ex-parte judgment

and decree dated 20

th

October, 2023, infructuous.

Findings and Analysis:

6. I have heard learned counsels for the parties and have perused the

record.

7. Initially, this Court issued notice only in the applications, I.A.

39009/2024 and I.A. 39010/2024, seeking condonation of delay in filing and

re-filing the application seeking setting aside of ex-parte judgment and

decree. However, arguments were addressed by the parties comprehensively,

including, on the issue regarding setting aside of the ex-parte judgment and

decree. Therefore, with the consent of the parties, this Court proceeds to

decide all the applications filed by the defendant.

8. Perusal of the record shows that interim injunction was granted in

favour of the plaintiff in the present proceedings, vide judgment dated 10

th

September, 2009, and the application of the plaintiff under Order XXXIX

Rules 1 and 2, CPC was disposed of.

9. Subsequently, the defendant’s evidence was closed vide order dated

21

st

May, 2014, in the following manner:

“Witness/DW1, who is to be cross examined, is not present

and it is stated that since the change of management, this witness

has joined some sister concerned of the defendant.

It is stated that new witness Mr. Shashi Shekhar is present. It is

also stated that defendant is ready to settle the matter.

Adjournment is strongly opposed for the reason that defendant

is trying to delay the matter and on the last of hearing it was specified

that if the witness is not present, evidence of the defendant shall stand

CS(COMM) 403/2018 Page 8 of 28

closed and otherwise also there was sufficient time since 19.12.2013

to compromise the matter, if the defendant was so willing.

Submissions made on behalf of the defendant seems to be no

plausible as they should not have transferred this witness to sister

concerned when the matter is listed for defendant‟s evidence as last

opportunity and otherwise also, if the witness has joined the sister

concerned, he can always be asked to come and depose.

It appears that defendant‟s intention is only to delay the

disposal of the matter and despite specific order that no further

opportunity shall be granted and despite cost of Rs. 5,000/-, which

has not yet been paid though was directed to be paid within 2 weeks.

Defendant has not bothered to take steps for settlement as claimed or

to file affidavit of the new witness subsequently to transfer of earlier

witness. In facts, defendant‟s evidence is closed.

List this matter before the Hon‟ble Court on 12th August, 2014

for further directions.”

(Emphasis Supplied)

10. Thereafter, when the matter was listed before the Court on 12

th

August, 2014, counsel for the defendant sought discharge, as he was not

receiving instructions. Accordingly, the said counsel was discharged, but

was directed to inform the defendant about the said order by way of written

communication. Further, court notice was also directed to be issued. The

order dated 12

th

August, 2014, reads as under:

“1. Mr Sushant Singh, learned counsel for the defendant, seeks discharge

as he has not been receiving any instructions in the matter.

2. Accordingly, Mr Sushant Singh is discharged from his obligation to

appear for the defendant. Mr Sushant Singh will also inform the

defendant by way of a communication, as regards the order passed

today, which would be sent via registered A.D. and speed post, and copy

thereof be placed on record.

3. Learned counsel for the plaintiff says that the evidence of the plaintiff

has been completed and that of the defendant stands closed.

4. List on 19.11.2014, in the category of 'short cause'.

5. In the meanwhile, court notice shall issue to the defendant, without

insistence on process fee.”

CS(COMM) 403/2018 Page 9 of 28

11. Pursuant thereto, the said counsel for defendant sent letter to the

defendant informing of his discharge from the matter and also

communicating the order dated 12

th

August, 2014. The copy of the letter

dated 20

th

October, 2014 written by the said counsel, along with the original

postal receipts have been placed on record before this Court. The letter dated

20

th

October, 2014, sent through Registered A.D. and Speed Post, by the

previous counsel to the defendant, is reproduced as under:

“xxx xxx xxx

Re: CS(OS) No. 1206/2008 titled as Strix Limited Versus Maharaja

Appliances Limited.

Sir

The above said matter was listed on 12

th

August, 2014 before the

Hon‟ble Mr. Justice Rajiv Shakdher. We duly appeared in the matter

and the other side has also appeared. We wish to inform you that I

have already been discharged from this case on the aforesaid date

and the Hon‟ble Court has directed us to inform you about the order

dated: 12.08.2014. Please find enclosed herewith the aforesaid order

for your perusal. You are requested to kindly collect all the papers

from my office, and you will be responsible for all the costs and

consequences.

Kindly treat this letter as a notice of discharge. Now the matter is

coming up on 19.11.2014 before the Hon‟ble Court.

If you require any other assistance in the matter, kindly feel free to

contact us.

Very truly yours,

Sushant Singh

Advocate

xxx xxx xxx”

(Emphasis Supplied)

12. Further, the court notice issued to the defendant pursuant to order

dated 12

th

August, 2014 was also duly served, as is evident from the office

noting of the Registry of this Court.

13. Thereafter, the present matter kept pending before this Court. Since

no one had been appearing on behalf of the defendant, this Court vide order

CS(COMM) 403/2018 Page 10 of 28

dated 22

nd

March, 2022, directed the Registry to intimate the counsel for the

defendant of the order passed by this Court. The plaintiff was also directed

to inform the counsel for the defendant. Accordingly, after sending the

intimation to the defendant, the plaintiff’s counsel filed an affidavit of

service to the defendant, which is reproduced as under:

CS(COMM) 403/2018 Page 11 of 28

14. Considering the aforesaid, vide order dated 19

th

July, 2022, this Court

noted that the defendant is deemed to be served. Order dated 19

th

July, 2022,

reads as under:

“None appears for the defendant. By the order of this Court dated

22.03.2022, this Court had directed the Registry to issue an intimation to

the learned counsel for the defendant of the order passed on that day.

The learned counsel for the plaintiff fairly points out that, vide

order of this Court dated 12.08.2014, the counsel who was earlier

appearing for the defendant has been discharged. He, however, submits

that the plaintiff has informed the defendant of the listing of the

present proceedings by way of an email and also by way of speed post

and courier, and an affidavit in this regard has been duly filed.

The office report also indicates that notice of the order of this

Court dated 22.03.2022 was sent to the defendant, however, the same is

not very clear whether the same has been served or not.

Be that as it may be, in view of the affidavit of the plaintiff, the

defendant is deemed to be served.

List for hearing on 2

nd

December, 2022”

(Emphasis Supplied)

15. This Court vide order dated 27

th

July, 2023, noted that the defendant

had stopped appearing in the matter after filing evidence and listed the

matter for final hearing. Order dated 27

th

July, 2023, reads as under:

“1. This hearing has been done through hybrid mode.

2. This matter is for final hearing.

3. The present suit is of the year 2008 and the evidence has been

concluded.

4. It is noticed that the Defendant has stopped appearing in the matter

after filing evidence.

5. Let the complete physical record be organized and sent to the Court on

the next date of hearing. If the Plaintiff wishes to file a note of arguments

with judgments, it is permitted to do so.

CS(COMM) 403/2018 Page 12 of 28

6. List on 23

rd

August, 2023 as Item-1 on Board.”

(Emphasis Supplied)

16. Subsequently, the suit was decreed in favour of the plaintiff, and

against the defendant, vide judgment and decree dated 20

th

October, 2023.

The plaintiff, thereafter, sent a letter along with a copy of the decree dated

20

th

October, 2023 to the defendant, which was delivered to the defendant

via Email, Speed Post and courier on 17

th

November, 2023. The proof of

service, with regard thereto, has been duly filed before this Court.

17. The defendant has admitted in Para 2 of its application, I.A.

39008/2024 for setting aside the ex-parte judgment and decree, that it

received a legal notice from the plaintiff, informing the defendant about the

passing of the said ex-parte judgment and decree.

18. The Execution Petition, being EX.(COMM) 56/2024 was filed by the

plaintiff before the District Court on 28

th

February, 2024, while the

application seeking setting aside of the ex-parte judgment and decree came

to be filed by the defendant before this Court, only on 25

th

April, 2024.

19. An ex-parte decree against a defendant would be set aside if the

defendant satisfies the Court that he was prevented by sufficient cause from

appearing when the suit was called for hearing. Elucidating on the concept

of sufficient cause, Supreme Court in the case of Parimal Versus Veena

Alias Bharti, 2011 SCC OnLine SC 311, has held as follows:

“xxx xxx xxx

12. It is evident from the above that an ex parte decree against a

defendant has to be set aside if the party satisfies the court that

summons had not been duly served or he was prevented by sufficient

cause from appearing when the suit was called on for hearing.

However, the court shall not set aside the said decree on mere

irregularity in the service of summons or in a case where the defendant

CS(COMM) 403/2018 Page 13 of 28

had notice of the date and sufficient time to appear in the court. The

legislature in its wisdom, made the second proviso mandatory in nature.

Thus, it is not permissible for the court to allow the application in utter

disregard of the terms and conditions incorporated in the second proviso

herein.

13. “Sufficient cause” is an expression which has been used in a large

number of statutes. The meaning of the word “sufficient” is “adequate”

or “enough”, inasmuch as may be necessary to answer the purpose

intended. Therefore, word “sufficient” embraces no more than that

which provides a platitude which when the act done suffices to

accomplish the purpose intended in the facts and circumstances existing

in a case and duly examined from the viewpoint of a reasonable standard

of a cautious man. In this context, “sufficient cause” means that the

party had not acted in a negligent manner or there was a want of bona

fide on its part in view of the facts and circumstances of a case or the

party cannot be alleged to have been “not acting diligently” or

“remaining inactive”. However, the facts and circumstances of each

case must afford sufficient ground to enable the court concerned to

exercise discretion for the reason that whenever the court exercises

discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa

Coalfields Ltd. [AIR 1962 SC 361] , Lonand Grampanchayat v. Ramgiri

Gosavi [AIR 1968 SC 222] , Surinder Singh Sibia v. Vijay Kumar Sood

[(1992) 1 SCC 70 : AIR 1992 SC 1540] and Oriental Aroma Chemical

Industries Ltd. v. Gujarat Industrial Development Corpn. [(2010) 5 SCC

459 : (2010) 2 SCC (L&S) 50 : (2010) 2 SCC (Cri) 1291 : (2010) 2 SCC

(Civ) 448] )

14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court

observed that every good cause is a sufficient cause and must offer an

explanation for non-appearance. The only difference between a “good

cause” and “sufficient cause” is that the requirement of a good cause

is complied with on a lesser degree of proof than that of a “sufficient

cause”. (See also Brij Indar Singh v. Kanshi Ram [(1916-17) 44 IA 218 :

AIR 1917 PC 156] , Manindra Land and Building Corpn. Ltd. v.

Bhutnath Banerjee [AIR 1964 SC 1336] and Mata Din v. A. Narayanan

[(1969) 2 SCC 770 : AIR 1970 SC 1953] .)

15 [Ed.: Para 15 corrected vide Official Corrigendum No.

F.3/Ed.B.J./14/2011 dated 25-2-2011.]. While deciding whether there is

sufficient cause or not, the court must bear in mind the object of doing

substantial justice to all the parties concerned and that the

technicalities of the law should not prevent the court from doing

substantial justice and doing away the illegality perpetuated on the

basis of the judgment impugned before it. (Vide State of Bihar v.

CS(COMM) 403/2018 Page 14 of 28

Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845 :

AIR 2000 SC 2306] , Madanlal v. Shyamlal [(2002) 1 SCC 535 : AIR

2002 SC 100] , Davinder Pal Sehgal v. Partap Steel Rolling Mills (P)

Ltd. [(2002) 3 SCC 156 : AIR 2002 SC 451] , Ram Nath Sao v.

Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] , Kaushalya

Devi v. Prem Chand [(2005) 10 SCC 127] , Srei International Finance

Ltd. v. Fairgrowth Financial Services Ltd. [(2005) 13 SCC 95] and

Reena Sadh v. Anjana Enterprises [(2008) 12 SCC 589 : AIR 2008 SC

2054] .)

16. In order to determine the application under Order 9 Rule 13 CPC,

the test that has to be applied is whether the defendant honestly and

sincerely intended to remain present when the suit was called on for

hearing and did his best to do so. Sufficient cause is thus the cause for

which the defendant could not be blamed for his absence. Therefore,

the applicant must approach the court with a reasonable defence.

Sufficient cause is a question of fact and the court has to exercise its

discretion in the varied and special circumstances in the case at hand.

There cannot be a straitjacket formula of universal application.

xxx xxx xxx”

(Emphasis Supplied)

20. Thus, on the anvil of the law laid down, as aforesaid, this Court has to

adjudicate as to whether any sufficient cause has been shown by the

defendant in the present case.

21. The defendant’s application, i.e., I.A. No. 39008/2024 for setting aside

ex-parte judgment and decree, is primarily on the ground that the defendant

was unaware about the pendency of the present suit, as the earlier counsel

had sought discharge in the absence of any instructions from the defendant,

and that the division of the defendant, Maharaja Whiteline Industries Pvt.

Ltd. was sold, after which the entire staff of Maharaja Whiteline Industries

Pvt. Ltd., was transferred and taken over by a French company, M/s SEB

Internationale SAS. Consequently, the authorised representative of the

company, who was looking after the litigation in the present case, had also

CS(COMM) 403/2018 Page 15 of 28

joined the transferee company. However, the record makes it evident that the

defendant is not justified in raising these submissions.

22. Perusal of the record shows that when the present matter was listed

for cross-examination of witness of the defendant, DW-1, on 21

st

May,

2014, the said witness was not present. The absence of the said witness was

sought to be justified on the ground that on account of change of

management, the said witness had joined the sister concern of the defendant.

Therefore, it is apparent that even if there was change in the management of

the defendant, the defendant was aware of the pendency of the present suit.

23. Besides, the previous counsel who had taken discharge, had duly

intimated the defendant about the pendency of the present suit, in terms of

the order dated 12

th

August, 2014. Proof of service with regard thereto, as

noted hereinabove, is on record. Further, court notice pursuant to order dated

12

th

August, 2014, was also sent to the defendant, which was duly served

upon the defendant, as per the office noting of the Registry. Defendant has

not denied receipt of the letter dated 20

th

October, 2014 from its previous

counsel, which was sent to the defendant’s registered address at West Patel

Nagar, New Delhi.

24. It is to be noted that defendant was again informed about the

pendency of the present suit, when vide order dated 22

nd

March, 2022,

directions were again issued to the plaintiff to inform the defendant about

the pendency of the present case. Pursuant thereto, letter dated 11

th

April,

2022 was issued by the plaintiff to the defendant, which was again sent at

the registered address of the defendant at 1/7, West Patel Nagar, New Delhi.

The defendant has not denied receipt of the aforesaid letter from the

plaintiff. Further, as noted hereinabove, proof of service of the said letter

CS(COMM) 403/2018 Page 16 of 28

pursuant to order dated 22

nd

March, 2022, has been duly filed by the plaintiff

along with an affidavit, which has been reproduced hereinabove.

25. It is to be noted that the aforesaid is the same address, where the letter

dated 17

th

November, 2023, had been sent by the plaintiff to the defendant

informing about the ex-parte judgment and decree, and receipt of which, has

been duly admitted by the defendant. Thus, the facts on record demonstrate

that the defendant was very much aware of the pendency of the present suit,

and no sufficient cause has been demonstrated by the defendant which

prevented it from appearing before this Court.

26. Under Section 27 of the General Clauses Act, 1897, service of a letter

is presumed to be effective if sent to the correct address. Once a letter is

properly dispatched by registered post, the burden shifts to the party

disputing the delivery to provide contrary proof. (See: Jain Developers &

Others Versus Raja R. Chhabria and others, 2018 SCC OnLine Bom 121,

Para 29). In the present case, the defendant has failed to provide such proof.

27. Thus, the facts on record clearly demonstrate that the defendant was

aware about the pendency of the present suit, and still did not take any steps

to appear in the present matter. The defendant has undoubtedly been grossly

negligent in pursuing the present matter and has sought to advance lame

excuses in order to wriggle out of its liability under the decree. The

defendant is liable to suffer the consequences of its action, in the absence of

any sufficient reason for not appearing before this Court.

28. It is also to be noted that Order XVII Rule 2 and 3 CPC, allows the

Court to proceed even in the absence of a party, and make such order as it

thinks fit. In the present case, after the evidence on behalf of the plaintiff

concluded, no evidence was led by the defendant and it abstained from

CS(COMM) 403/2018 Page 17 of 28

participating in the suit proceedings. Thus, while disposing of the present

suit, in the judgment and decree dated 20

th

October, 2023, it is clearly

recorded as follows:

“xxx xxx xxx

22. Thereafter, the Defendant‟s Counsel sought discharge and the

Defendant was proceeded ex parte. In effect therefore, there has

been no evidence that has been led, on behalf of the Defendant.

23. Accordingly, this Court shall proceed to decide the issues that

have been framed on the basis of the pleadings and the evidence on

record.

xxx xxx xxx”

(Emphasis Supplied)

29. Since the defendant stopped participating in the proceedings before

this Court, and did not cause appearance despite service, the Court

proceeded in the defendant’s absence, and listed the matter for hearing. The

absence of the term “ex-parte” does not negate the fact that the Court

indeed proceeded with the suit proceedings in the defendant’s absence. This

fact is further fortified by the order dated 02

nd

December, 2022, wherein, the

Court specifically noted that the defendant is already proceeded ex-parte,

though no formal order in that regard had been passed earlier.

30. Mere fact that in the order dated 19

th

July, 2022, it is not specifically

recorded that the defendant is proceeded ex-parte, does not alter the position

that the Court ordered the matter to be proceeded in the absence of the

defendant. It is also to be noted that vide order dated 27

th

July, 2023, it was

categorically recorded by this Court that the defendant had stopped

appearing in the matter after filing evidence. After recording the same, the

Court proceeded to list the matter for final hearing. Therefore, for all intent

and purposes, the defendant had been proceeded ex-parte, though the same

CS(COMM) 403/2018 Page 18 of 28

was not explicitly so recorded. Consequently, it is held that the defendant’s

claims, regarding non-compliance with procedural requirements, are without

any merit.

31. Even when no formal order has been passed by the Court for

proceeding ex-parte, the fact that the Court proceeded with the matter and

decided the same on the basis of pleadings and evidence on record, in the

absence of the defendant, clearly establishes that the defendant was in fact

proceeded with ex-parte. Holding that whether a decree is ex-parte or not,

can be decided from the attendant circumstances, though formal order in that

regard may not have been made, the Bombay High Court in the case of Balu

@ Madhavrao Shankarrao Ghorpade since deceased by his LRs. Ajay

Madhavrao Ghorpade and others Versus Radhakkabai Panditrao

Ghorpade and others, 2003 SCC OnLine Bom 739, has held as follows:

“xxx xxx xxx

21. Mr. Bandiwadekar also argued that assuming that the court can

pass an ex parte order by falling back on Order IX, Rule 6(1)(a), it

has to make an order that the suit be heard ex parte. He submitted

that inasmuch as the words „make an order that the suit be heard ex

parte‟ are added by amendment, this requirement is mandatory. In

this connection he relied on Rambrish's case (supra) and submitted

that since no formal order was made, the judgment and decree in

question cannot be called ex parte.

xxx xxx xxx

25. Order IX, Rule 7 provides that where the court adjourns the

hearing of the suit ex parte, the defendant can appear on or before

such date, assign good cause for his non-appearance, and the court

may hear him on payment of costs or otherwise. All this leads me to

conclude that, if the defendant does not appear though duly served,

the court should have evidence before it to indicate that, if such

evidence is not controverted, the plaintiff would be entitled to a

decree. Therefore, the ex parte decree cannot be passed in undue

haste. Though Order VI, Rule 1(a) does not state that on the very day

on which the defendant does not appear, the court cannot pass an ex

CS(COMM) 403/2018 Page 19 of 28

parte decree, the hearing of the suit, in a given case, will have to be

adjourned for ex parte decree, so that the plaintiff can adduce

evidence and on that uncontroverted evidence, the court can pass an

ex parte decree. I am unable to agree with Mr. Bandiwadekar that, if

formal order that suit shall be proceeded ex parte is not made, the

decree cannot be ex parte. Whether the decree is ex parte or not can

be decided from the other attendant circumstances also. In my

opinion, reliance placed by Mr. Bandiwadekar on Rambrish's

case (supra) is totally misplaced.

26. In Rambrish's case (supra) on the relevant day defendant 1 was

present. Examination-in-chief of plaintiff's witness was concluded. No

oral evidence was led by defendant 1. Second defendant and his

advocate were absent. No written statement was filed and that day

itself judgment was passed. The 2nd defendant applied for setting

aside of that judgment. The trial Court rejected the application. He

filed Civil Revision Application in the High Court. The High Court

considered Order VIII, Rule 5(2) which says that, if the defendant has

not filed a pleading it shall be lawful for the court to proceed to

pronounce judgment on the basis of the facts contained in the plaint

but the court may in its discretion require that any fact may be proved.

The court was not considering provisions of Order XVII, Rules 2 and

3. Morever the judgment was passed on the same day. It is in these

circumstances that the court held that the formal order of the court to

proceed ex parte was not made and the decree was not ex parte.

27. In this case on 19-7-1986 plaintiff's evidence was recorded and

the case was adjourned to 21-7-1986. On 21-7-1986 the court

resumed hearing. The plaintiff's advocate produced some more

documents and the decree was passed on the uncontroverted evidence

of the plaintiff. Though formal order does not appear to have been

made all other conditions are satisfied. The judgment and order

therefore, is ex parte.

xxx xxx xxx”

(Emphasis Supplied)

32. Likewise, the Rajasthan High Court in the case of Prahlad Das

Versus Karunaram & Anr., 1998 SCC OnLine Raj 143, has held as

follows:

“xxx xxx xxx

6. So far as question of recalling of witnesses is concerned, it is the

discretion of the Court given to it under Order 18 Rule 17 CPC which

CS(COMM) 403/2018 Page 20 of 28

provides that the Court may at any stage of a suit recall any witness

who has been examined and may (subject to the law of evidence for

the time being in force) put such questions to him as the Court thinks

fit. The word used “may” indicates that the discretion has been given

to the trial Court. The word “may” used does not mean “shall” and

the Court was not bound to recall the witnesses whom the petitioner

wanted to recall. The case of the petitioner himself is that he had

engaged a counsel some time in the year 1991 but he did not appear

and ultimately on 31.7.93 the defence of the petitioner was closed.

There is nothing on record as to when did the petitioner contact his

advocate in between 29.4.91 to August, 1995. It is found from the

record that when Karunaram and his two witnesses were examined by

the learned District Judge, proper opportunities were given to the

opposite parties who were present to cross examine the witnesses. But

when the petitioner or his counsel were not present they did not and

could not have cross examined these witnesses. It was submitted that

a formal order of ex parte proceedings was not passed against the

petitioner. In my view it hardly matters. Now to say that petitions

may be given opportunity to cross examine the witnesses after

recalling them will amount injustice to other party. The law helps

those who do not sleep. The petitioner has been sleeping over the

matter for the reasons best known to him.

xxx xxx xxx”

(Emphasis Supplied)

33. As is apparent from the facts and circumstances and proceedings in

the present case, the defendant had been proceeded ex-parte and the Court

accordingly proceeded to decide the matter in accordance with law, on the

basis of material before it, in the absence of the defendant.

34. The judgment of the Supreme Court in the case of Dwarika Prasad

(D) thr. LRs Versus Prithvi Raj Singh, 2024 SCC OnLine SC 3828, as

relied upon by the defendant, is clearly distinguishable and is not applicable

to the facts and circumstances of the present case. In the said case, the

appellant therein was an illiterate and old aged person, who was unable to

understand court proceedings. He was not made aware of the ex-parte

decree passed by the Trial Court by his previous counsel. It was only after

CS(COMM) 403/2018 Page 21 of 28

appointment of a new counsel that the appellant in the said case, got to know

about the ex-parte decree passed against him, after which he immediately

filed an application for restoration of the suit. It is in these circumstances,

the Supreme Court restored the order of the learned Trial Court which had

allowed restoration of the suit, thereby setting aside the ex-parte decree, as

the appellant therein, was found to have acted bonafide and diligently.

35. However, in the present case, the defendant is a registered company,

and not any uneducated or naive person. The defendant was aware of the

ongoing proceedings and had been duly intimated about the present

proceedings by the previous counsel, as well as the plaintiff’s counsel.

Besides, notice issued by the court to the defendant on one of the occasions,

was also duly served. Yet, the defendant chose not to appear during the

pendency of the suit proceedings. The conduct of the defendant in the

present case cannot be said to be bonafide and the defendant has failed to

show any sufficient cause for setting aside the ex-parte judgment and

decree. The defendant has clearly been negligent and indolent in the present

case.

36. It is to be noted that the defendant is not a rustic illiterate person but a

registered company, who had been actively participating in this case. Thus,

it cannot shift blame to its previous counsel. Holding that a company which

is managed by educated persons, who know very well where their interest

lies, is liable to bear the consequences if it does not pursue its case

diligently, this Court in the case of Moddus Media Pvt. Ltd. Versus M/s

Scone Exhibition Pvt. Ltd., 2017 SCC OnLine Del 8491, has held as

follows:

“xxx xxx xxx

CS(COMM) 403/2018 Page 22 of 28

13. The litigant owes a duty to be vigilant of his rights and is also

expected to be equally vigilant about the judicial proceedings pending

in the court of law against him or initiated at his instance. The litigant

cannot be permitted to cast the entire blame on the Advocate. It

appears that the blame is being attributed on the Advocate with a view

to get the delay condoned and avoid the decree. After filing the civil

suit or written statement, the litigant cannot go off to sleep and wake

up from a deep slumber after passing a long time as if the court is

storage of the suits filed by such negligent litigants. Putting the entire

blame upon the advocate and trying to make it out as if they were

totally unaware of the nature or significance of the proceedings is a

theory put forth by the appellant/applicant/defendant company, which

cannot be accepted and ought not to have been accepted. The

appellant is not a simple or rustic illiterate person but a Private

Limited Company managed by educated businessmen, who know

very well where their interest lies. The litigant is to be vigilant and

pursue his case diligently on all the hearings. If the litigant does not

appear in the court and leaves the case at the mercy of his counsel

without caring as to what different frivolous pleas/defences being

taken by his counsel for adjournments is bound to suffer. If the

litigant does not turn up to obtain the copies of judgment and orders

of the court so as to find out what orders are passed by the court is

liable to bear the consequences.

xxx xxx xxx”

(Emphasis Supplied)

37. The present is a commercial suit, wherein, the yardstick for condoning

delay is strict. While dealing with an application for condonation of delay,

the court examines whether a party has acted diligently and without

negligence, ensuring that no undue advantage is extended in contravention

of the procedural mandate of the Commercial Courts Act, 2015. Only in a fit

case, where a party has acted bonafide and not in a negligent manner, a short

delay can be condoned. Thus, holding that in cases arising out of The

Commercial Courts Act, 2015, condonation can be granted only in

exceptional circumstances and not as a matter of rule, Supreme Court in the

case of Govt. of Maharashtra (Water Resources Department) Represented

CS(COMM) 403/2018 Page 23 of 28

by Executive Engineer Versus Borse Brothers Engineers and Contractors

Private Limited, 2021 SCC OnLine SC 233, has held as follows:

“xxx xxx xxx

58. Given the object sought to be achieved under both the Arbitration

Act and the Commercial Courts Act, that is, the speedy resolution of

disputes, the expression “sufficient cause” is not elastic enough to

cover long delays beyond the period provided by the appeal provision

itself. Besides, the expression “sufficient cause” is not itself a loose

panacea for the ill of pressing negligent and stale claims. This Court,

in Basawaraj v. LAO [Basawaraj v. LAO, (2013) 14 SCC 81] , has held :

(SCC pp. 85-88, paras 9-15)

“9. Sufficient cause is the cause for which the defendant

could not be blamed for his absence. The meaning of the

word “sufficient” is “adequate” or “enough”, inasmuch as

may be necessary to answer the purpose intended.

Therefore, the word “sufficient” embraces no more than that

which provides a platitude, which when the act done suffices

to accomplish the purpose intended in the facts and

circumstances existing in a case, duly examined from the

viewpoint of a reasonable standard of a cautious man. In this

context, “sufficient cause” means that the party should not

have acted in a negligent manner or there was a want of

bona fide on its part in view of the facts and circumstances of

a case or it cannot be alleged that the party has “not acted

diligently” or “remained inactive”. However, the facts and

circumstances of each case must afford sufficient ground to

enable the court concerned to exercise discretion for the

reason that whenever the court exercises discretion, it has to

be exercised judiciously. The applicant must satisfy the

court that he was prevented by any “sufficient cause” from

prosecuting his case, and unless a satisfactory explanation

is furnished, the court should not allow the application for

condonation of delay. The court has to examine whether the

mistake is bona fide or was merely a device to cover an

ulterior purpose. (See Manindra Land & Building

Corpn. v. Bhutnath Banerjee [Manindra Land & Building

Corpn. v. Bhutnath Banerjee, AIR 1964 SC 1336] , Mata

Din v. A. Narayanan [Mata Din v. A. Narayanan, (1969) 2

SCC 770] , Parimal v. Veena [Parimal v. Veena, (2011) 3

SCC 545 : (2011) 2 SCC (Civ) 1] and Maniben Devraj

Shah v. Municipal Corpn. of Brihan Mumbai [Maniben

CS(COMM) 403/2018 Page 24 of 28

Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012)

5 SCC 157 : (2012) 3 SCC (Civ) 24] .)

10. In Arjun Singh v. Mohindra Kumar [Arjun

Singh v. Mohindra Kumar, AIR 1964 SC 993] this Court

explained the difference between a “good cause” and a

“sufficient cause” and observed that every “sufficient cause”

is a good cause and vice versa. However, if any difference

exists it can only be that the requirement of good cause is

complied with on a lesser degree of proof than that of

“sufficient cause”.

11. The expression “sufficient cause” should be given a

liberal interpretation to ensure that substantial justice is

done, but only [Ed. : The matter between two asterisks has

been emphasised in original.] so long as negligence, inaction

or lack of bona fides cannot be imputed to the party

concerned [Ed. : The matter between two asterisks has been

emphasised in original.] , whether or not sufficient cause has

been furnished, can be decided on the facts of a particular

case and no straitjacket formula is possible.

(Vide Madanlal v. Shyamlal [Madanlal v. Shyamlal, (2002) 1

SCC 535] and Ram Nath Sao v. Gobardhan Sao [Ram Nath

Sao v. Gobardhan Sao, (2002) 3 SCC 195].)

12. It is a settled legal proposition that law of limitation may

harshly affect a particular party but it has to be applied with

all its rigour when the statute so prescribes. The court has

no power to extend the period of limitation on equitable

grounds. „A result flowing from a statutory provision is

never an evil. A court has no power to ignore that provision

to relieve what it considers a distress resulting from its

operation.‟ The statutory provision may cause hardship or

inconvenience to a particular party but the court has no

choice but to enforce it giving full effect to the same. The

legal maxim dura lex sed lex which means “the law is hard

but it is the law”, stands attracted in such a situation. It has

consistently been held that, “inconvenience is not” a

decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its

aim being to secure peace in the community, to suppress

fraud and perjury, to quicken diligence and to prevent

oppression. It seeks to bury all acts of the past which have

not been agitated unexplainably and have from lapse of

time become stale. According to Halsbury's Laws of

England, Vol. 28, Para 605 p. 266:

CS(COMM) 403/2018 Page 25 of 28

„605. Policy of the Limitation Acts.—The courts have

expressed at least three differing reasons supporting the

existence of statutes of limitation, namely, (1) that long

dormant claims have more of cruelty than justice in them,

(2) that a defendant might have lost the evidence to

disprove a stale claim, and (3) that persons with good

causes of actions should pursue them with reasonable

diligence.‟

An unlimited limitation would lead to a sense of insecurity

and uncertainty, and therefore, limitation prevents

disturbance or deprivation of what may have been acquired

in equity and justice by long enjoyment or what may have

been lost by a party's own inaction, negligence or laches.

(See Popat & Kotecha Property v. SBI Staff Assn. [Popat &

Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510]

, Rajender Singh v. Santa Singh [Rajender Singh v. Santa

Singh, (1973) 2 SCC 705] and Pundlik Jalam

Patil v. Jalgaon Medium Project [Pundlik Jalam

Patil v. Jalgaon Medium Project, (2008) 17 SCC 448 :

(2009) 5 SCC (Civ) 907].)

14. In P. Ramachandra Rao v. State of Karnataka [P.

Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 :

2002 SCC (Cri) 830] this Court held that judicially

engrafting principles of limitation amounts to legislating and

would fly in the face of law laid down by the Constitution

Bench in Abdul Rehman Antulay v. R.S. Nayak [Abdul

Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992

SCC (Cri) 93] .

15. The law on the issue can be summarised to the effect that

where a case has been presented in the court beyond

limitation, the applicant has to explain the court as to what

was the “sufficient cause” which means an adequate and

enough reason which prevented him to approach the court

within limitation. In case a party is found to be negligent, or

for want of bona fide on his part in the facts and

circumstances of the case, or found to have not acted

diligently or remained inactive, there cannot be a justified

ground to condone the delay. No court could be justified in

condoning such an inordinate delay by imposing any

condition whatsoever. The application is to be decided only

within the parameters laid down by this Court in regard to

the condonation of delay. In case there was no sufficient

cause to prevent a litigant to approach the court on time

CS(COMM) 403/2018 Page 26 of 28

condoning the delay without any justification, putting any

condition whatsoever, amounts to passing an order in

violation of the statutory provisions and it tantamounts to

showing utter disregard to the legislature.”

(emphasis supplied)

xxx xxx xxx

63. Given the aforesaid and the object of speedy disposal sought to be

achieved both under the Arbitration Act and the Commercial Courts

Act, for appeals filed under Section 37 of the Arbitration Act that are

governed by Articles 116 and 117 of the Limitation Act or Section 13(1-

A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60

days, respectively, is to be condoned by way of exception and not by way

of rule. In a fit case in which a party has otherwise acted bona fide and

not in a negligent manner, a short delay beyond such period can, in the

discretion of the court, be condoned, always bearing in mind that the

other side of the picture is that the opposite party may have acquired

both in equity and justice, what may now be lost by the first party's

inaction, negligence or laches.

xxx xxx xxx”

(Emphasis Supplied)

38. Thus, from the aforesaid, it is manifest that strict adherence to the

aforesaid principles have to be ensured in the present case. Being a

commercial matter involving patent infringement, timely resolution of

disputes is the cornerstone of the Commercial Courts framework.

39. In the present case, the defendant’s application under Order IX Rule

13 CPC is delayed by 156 days, as admitted in Para 12 of I.A. No.

39010/2024. This delay exceeds the limitation period by more than five

times, making it grossly disproportionate and clearly outside the bounds of

what can be considered a “short” delay. The only reason advanced is the

absence of the counsel from 15

th

February, 2024 to 04

th

March, 2024, due to

a family wedding. However, it is pertinent to note that the defendant

admitted to having knowledge of the decree on 30

th

November, 2023, as

stated in Para 7 of the application. Despite this, the application under Order

CS(COMM) 403/2018 Page 27 of 28

IX Rule 13 CPC was filed only on 25

th

April, 2024. The defendant has

clearly failed to provide substantial grounds to justify this delay and such

negligence demonstrates a lack of diligence on the defendant’s part.

40. It is further to be noted that the initial 156 days’ delay is further

compounded by an additional 110 days’ delay in re-filing the application

after objections were raised by the Registry on 26

th

April, 2024. As per

procedural norms, the defendant had 30 days to cure the defects and re-file

the application, with the deadline expiring on 26

th

May, 2024. However, the

defendant re-filed the application only after 110 days beyond the limitation

period. The justification provided by the defendant for this delay is the

alleged accident of the clerk’s mother on 07

th

June, 2024, resulting in her

hospitalization. However, medical records submitted by the defendant show

that the accident occurred well after the 30 days period for curing objections

had already expired. Thus, this timeline renders the defendant’s explanation

baseless and indicative of an afterthought to excuse their non-compliance.

41. The defendant’s repeated lapses, including, the delay in filing the

initial application and the subsequent delay in re-filing, reflect a pattern of

negligence and lack of bona fide conduct. The defendant was aware of the

proceedings and yet failed to act promptly or provide a coherent explanation

for such significant delays. It is needless to state that The Commercial

Courts Act, 2015 was enacted to expedite the resolution of commercial

disputes and this Court will not condone such gross negligence that

undermines its intent.

42. In view of the above, the defendant’s conduct demonstrates a

complete lack of diligence and bona fides. The cumulative delay of 266

days, without sufficient cause, falls far outside the permissible bounds of

CS(COMM) 403/2018 Page 28 of 28

delay under The Commercial Courts Act, 2015. Therefore, the applications

for condonation of delay are without any merit.

43. The facts and record of the present case make it evident that no

sufficient cause has been shown by the defendant for setting aside the ex-

parte judgment and decree dated 20

th

October, 2023. Further, the defendant

has also failed to satisfactorily explain the delay in filing the application for

setting aside the said ex-parte judgment and decree. Thus, this Court is not

inclined to accept the submissions advanced by the defendant.

44. Accordingly, applications, I.A. 39008/2024, I.A. 39009/2024 and I.A.

39010/2024, are dismissed, as devoid of any merits.

45. On account of the dismissal of the aforesaid applications, the

Executing Court is at liberty to proceed with the execution pending before it,

as per law. Consequently, application, I.A. No. 43736/2024, seeking stay of

the execution proceedings before the Trial Court, is also dismissed.

(MINI PUSHKARNA)

JUDGE

FEBRUARY 11, 2025

Ak/Kr/Au