Bombay High Court
CHANDRESH G. SANGHVI AND ANR.versusS.K. SINGHI AND PARTNER LLP AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The appellants must seek relief by filing an application under Order IX Rule 13 of the CPC before the trial court; the appeal is disposed without addressing the merits of the decree.
Summary
The Bombay City Civil Court passed an ex‑parte decree against the appellants without them filing a written statement or being heard, on the ground that the writ of summons was allegedly not served. The appellants contended that the affidavit of service was unreliable, citing inconsistencies such as reference to a deceased defendant and an undelivered WhatsApp message, thereby depriving them of a chance to defend. The High Court held that the appropriate remedy is an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex‑parte judgment, and directed the parties to approach the trial court accordingly. The court expressed no view on the merits of the original decree and stayed any execution proceedings pending the trial court’s decision. Consequently, the appeal was disposed without costs, and the parties were ordered to appear before the trial court on 31 August 2026.
Issues considered
- Whether the ex‑parte decree can be set aside on the ground of non‑service of summons
- Whether the appropriate remedy is an application under Order IX Rule 13 of the CPC
Legislation cited
- Code of Civil Procedure, 1908 — s. Order IX Rule 13
Subjects
- ex parte decree
- service of summons
- CPC Order IX Rule 13
- setting aside judgment
- civil procedure
Judgment
16-COMFA-28-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL FIRST APPEAL NO. 28 OF 2025
WITH
INTERIM APPLICATION NO. 6956 OF 2025
IN
COMMERCIAL FIRST APPEAL NO. 28 OF 2025
Chandresh G. Sanghvi & Anr. ...Appellants/Applicants
Versus
S.K. Singhi and Partner LLP & Ors. ...Respondents
_______
Mr. Faiyaz Khan a/w Aquil Khan & Kunal Haresh Punjabi for
Appellants/Applicants.
Ms. Akshaya Puthran a/w Ankur Singhi i/b S. K. Singhi & Partners LLP for
Respondent Nos.1 & 2.
AJIT
_______
RAMESH
PATHRIKAR CORAM: G. S. KULKARNI &
Digitally signed by
AJIT RAMESH
DR. NEELA GOKHALE, JJ.
PATHRIKAR
Date: 2026.08.25
18:24:16 +0530 DATE: 20th AUGUST 2026
P.C.
1. This Appeal impugns the judgment and decree dated 25 th June 2024 passed
by the learned District and Additional Sessions Judge, Bombay City Civil Court at
Mazgaon, Bombay (Court Room No. 14), in Commercial Suit No. 872 of 2024,
whereby the suit came to be partly decreed, Defendant Nos. 1 to 5 being directed,
jointly and severally, to pay Rs. 31,00,000/- with interest at 9% per annum from
the date the amount fell due until realisation.
2. It is undisputed on the face of the record that the suit proceeded ex parte
against the Appellants by order dated 4 th April 2024, and that the decree was
passed without the Appellants having filed a written statement or being heard in
the proceedings.
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16-COMFA-28-2025.DOC
3. Heard Mr Faiyaz Khan, learned counsel for the Appellants and Ms. Akshaya
Puthran, learned counsel for the Respondent Nos. 1 and 2.
4. The grounds urged in the appeal are that the writ of summons was never
served upon the Appellants; that the affidavit of service filed on behalf of the
original Plaintiffs is unreliable and inconsistent, inasmuch as it speaks of
communication with a person arrayed as a Defendant who is said to have died in
2021, and a WhatsApp message, the delivery of which was itself admitted to be
pending, and for such reasons the Appellants were consequently deprived of the
opportunity to file a written statement and to be heard.
5. In the instant case, a decree is passed ex parte; the remedy of an application
under Order IX Rule 13 of the Code of Civil Procedure, 1908 (‘CPC’) is the
appropriate remedy as provided by law, as the challenge rests upon non-service and
denial of opportunity which are matters integral to the proceedings of the civil suit.
It is only in the circumstances of the present case considering the object and
intention of the said provision which enables a defendant to approach the very
same court, so that the said court can examine such contentions on whether the
passing of an ex parte decree was justified.
6. Hence, in our opinion, the Appellants need to approach the Trial Court
under the provisions of Order IX Rule 13 of the CPC at the first instance for
adjudication of the said issues as asserted by the Appellants. Rather than to relegate
the Appellants to institute fresh proceedings, present proceedings can be
considered and dealt as the application under Order IX Rule 13 of the CPC. We
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16-COMFA-28-2025.DOC
permit the parties to present these proceedings to the District and Additional
Sessions Judge, Bombay City Civil Court, to be treated as an application under
Order IX Rule 13 of the CPC. We permit any additional application to be filed by
the Appellants.
7. We express no opinion on the merits of the Judgment and Order, and the
Trial Court shall hear and decide the Appellants’ application to set aside the
Judgment and Order passed ex parte against the Appellants on its own merit and in
accordance with law. If any execution proceedings are initiated and pending before
the Execution Court, the said Court shall defer the hearing of those proceedings
until the Trial Court decides the Appellants’ application for setting aside the ex
parte Judgment and Order.
8. The parties shall appear before the Trial Court in such proceedings on 31 st
August 2026.
9. The Appeal is disposed of in the aforesaid terms.
10. In view of the above, pending Interim Applications, if any, shall also be
disposed of.
11. No costs.
(DR. NEELA GOKHALE, J) (G. S. KULKARNI, J.)
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