Dismissed¶58

M/S Sugam Packing Industries v. M/S Tiwnkle Impex

Karnataka HC7 Nov 2025COMAP/593/2025

Case brief

AI extract

What is this about?

Karnataka HC Commercial Appeal dismissed; summary suit under Order XXXVII CPC; ex parte decree dated 29.06.2024; application under Order IX Rule 13 CPC not maintainable against Order XXXVII decree; Order XXXVII Rule 4 CPC - special circumstances and leave to defend; Rajni Kumar v. Suresh Kumar Malhotra (2003) 5 SCC 315 relied on; recall of ex parte order; counsel's ill-health explanation; Commercial Court Bengaluru CCH-83; Sugam Packing Industries v. Tiwnkle Impex; COMAP No. 593 of 2025; NC: 2025:KHC:45160-DB.

What did the court decide?

This Court finds no flaw in the reasoning of the learned Commercial Court in rejecting the appellant's application for recall of the ex parte decree. ¶52

M/S Sugam Packing Industries Vs M/S Tiwnkle Impex — Arbitration | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶58

Issue for consideration

Whether the learned Commercial Court rightly rejected the appellant's application for recall of the ex parte decree dated 29.06.2024 in Com.O.S.No.15/2024 (Com.Misc.No.66/2024). +2 more

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Court's answer

This Court finds no flaw in the reasoning of the learned Commercial Court in rejecting the appellant's application for recall of the ex parte decree.

¶52

Ratio / Principle

An application under Order IX Rule 13 of the CPC is not maintainable where the suit was filed under Order XXXVII of the CPC.

¶52

Key takeaways

An application under Order XXXVII Rule 4 of the CPC must set out the special circumstances which prevented the party from appearing or applying for leave to defend, and must establish the relevant facts entitling the applicant to leave to defend, as held by the Supreme Court in Rajni Kumar v. Suresh Kumar Malhotra.ratio¶53
The appellant's application under Order IX Rule 13 of the CPC does not disclose sufficient grounds for grant of leave to defend.ratio¶57

Detailed headnote1 paragraphs

Commercial Appeal COMAP No. 593 of 2025 (High Court of Karnataka at Bengaluru; Vibhu Bakhru, Chief Justice, with C.M. Poonacha, J; oral judgment dated 07.11.2025) - DISMISSED. The appeal, filed under Section 13(1A) of the Commercial Court Act, 2015 read with Section 37(1)(c) of the Arbitration and Conciliation Act, 1996, impugned the Commercial Court's order dated 27.10.2025 in Com.Misc.No.66/2024 rejecting the appellant-defendant's application under Order IX Rule 13 CPC to set aside the ex parte judgment and decree dated 29.06.2024 in Com.O.S.No.15/2024 - a summary suit under Order XXXVII CPC in which the respondent-plaintiff sought Rs.22,24,624/- with interest. Held: (i) an application under Order IX Rule 13 CPC is not maintainable to set aside an ex parte decree in a suit filed under Order XXXVII CPC; (ii) an application under Order XXXVII Rule 4 CPC must set out the special circumstances which prevented the party from appearing or applying for leave to defend and must establish the facts entitling it to leave (Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315, relied on); (iii) the appellant's application disclosed no sufficient grounds for leave to defend and lacked the supporting documents. Finding no flaw in the Commercial Court's reasoning, the Court dismissed the appeal; the pending application stands disposed of.

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NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2025

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PRESENT

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THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA COMMERCIAL APPEAL NO. 593 OF 2025

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BETWEEN:

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M/S SUGAM PACKING INDUSTRIES PROPRIETOR SMT.SUMA NO 05, SRI.MANJUNATHA INDUSTRIES ESTATE MAGADI MAIN ROAD, HEROHALLI CROSS B, BENGALURU-560091.

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…APPELLANT

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(BY SRI SAGAR B B,ADVOCATE)

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AND:

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Digitally signed by PRABHAKAR SWETHA KRISHNAN

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Location: High Court of Karnataka

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M/S TIWNKLE IMPEX REPRESENTED BY ITS PROPRIETOR MR.RAJENDRA KUMAR JAIN NO 272, NANJUNDESHWARA NILAYA AKKIPET MAIN ROAD, BENGALURU-560053.

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…RESPONDENT

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(BY SRI ANISH P BHOJANI,ADVOCATE FOR C/RESPONDENT)

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THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 (1A) OF COMMERCIAL COURT ACT, 2015 READ WITH UNDER SECTION 37 (1) (C) OF THE ARBITRATION AND CONCILATION ACT, 1996 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 27.10.2025 PASSED IN COMMERCIAL MISCELLANEOUS NO.66/2024 ON THE FILE OF HONBLE LXXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT, BENGALURU (CCH-83), IN THE INTEREST OF JUSTICE AND EQUITY & ETC.

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NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)

¶27

The appellant has filed the present appeal impugning an order dated 27.10.2025 passed by the learned Commercial Court in Com.Misc.No.66/2024.

¶28

The appellant-arrayed as defendant in the suit being Com.O.S.No.15/2024-had filed the said application (Com.Misc.No.66/2024), inter alia , praying that ex parte judgment and decree dated 29.06.2024 passed by the learned Commercial Court in Com.O.S.No.15/2024 be set aside and the appellant be permitted to contest the case on merits.

¶29

It is material to note that the aforementioned suit being Com.O.S.No.15/2024, was instituted by the respondent [ plaintiff ],

¶30

inter alia , seeking a decree for a sum of Rs.22,24,624/(Rs.Twenty Two Lakhs Twenty Four Thousand Six Hundred and

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3 - NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

¶33

Twenty Four only) including interest at the rate of 24% p.a. from the date of the invoices. The plaintiff also claimed future interest at the rate of 1% per day from the date of legal notice till realization costs of the suit.

¶34

It is the plaintiff's case that it had, in usual course of business supplied materials on credit basis to the defendant and had maintained a running account. The plaintiff claimed that an amount of Rs.11,52,299/- remained outstanding in respect of the goods supplied against four invoices dated 03.07.2019, 10.08.2019, 14.09.2019 and 30.10.2019. The plaintiff also claimed that the defendant had also provided an account confirmation dated 10.09.2019 acknowledging an amount of Rs.15,23,160/- as due and payable to the plaintiff as against the aforesaid amount. The defendant had subsequently made a payment of Rs.3,70,861/-. Thus, the plaintiff sought recovery of the balance amount along with interest quantified to Rs.10,72,325/-.

¶35

It is material to note that the said suit was filed as a summary suit under Order XXXVII of the Code of Civil Procedure,1908 [ CPC ]. The order sheets, which have been placed on record

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4 - NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

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indicate that the suit was registered on 03.01.2024 and summons were issued to the appellant [ defendant ] in Form No.4 on 04.01.2024. The suit was thereafter listed on 12.02.2024. However, none appeared for the defendant on 12.02.2024 and the defendant was proceeded ex parte .

¶39

The suit was thereafter listed on 21.02.2024. On that date, the defendant filed an application for recall of the order dated 12.02.2024 whereby, it was proceeded ex parte . The said application was allowed with costs quantified at Rs.500/-. On that day, the plaintiff filed a memo along with Form No.4(A) for summary judgment and the defendant sought time for filing objections. The suit was thereafter listed on 06.03.2024 for the said purpose. However, none appeared for the defendant on 06.03.2024. Accordingly, the suit was posted for summary judgment on 20.03.2024. The suit was called out on 20.03.2024, but was adjourned to 26.03.2024 at the request of the counsel for the plaintiff. The defendant was not present on that date as well.

¶40

On 26.03.2024, the learned counsel appearing for the plaintiff presented his arguments. On this hearing as well, none

¶41

5 - NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

¶43

was present on behalf of the defendant. The suit was posted for summary judgment on 06.04.2024. However, the judgment was not ready on that date and therefore, the suit was posted on 24.04.2024. It was thereafter listed on 07.06.2024, 21.06.2024, 27.06.2024, 29.06.2024 and was adjourned on each of the occasions as the judgment was not ready. The judgment was finally pronounced on 29.06.2024.

¶44

It is material to note that the defendant did not file any leave to defend and therefore, in absence of the same, the plaintiff was entitled to a summary judgment.

¶45

The appellant filed an application under Order IX Rule 13 of the CPC to set aside the ex parte decree, which was decreed in terms of the impugned order.

¶46

The explanation provided by the appellant for remaining unrepresented was that the counsel for the appellant had not appeared before the Court due to ill-health. The medical records produced by the appellant indicate that the counsel was under treatment from 05.02.2024 to 26.03.2024. However, the Commercial Court noted that the counsel had appeared on

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NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

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HC-KAR

¶50

21.02.2024. Additionally, the learned Commercial Court observed that the counsel had not appeared at any stage after 21.02.2024 although the suit was listed on several occasions.

¶51

Considering the said material on record, the learned Commercial Court rejected the appellant's application for recall of the ex parte decree.

¶52

We find no flaw in the reasoning of the learned Commercial Court. We also note that an application under Order IX Rule 13 of the CPC would not be maintainable as the suit was filed under Order XXXVII of the CPC. The learned counsel for the appellant fairly concedes that the correct course would be to file an application under Order XXXVII Rule 4 of the CPC for recall of the ex parte decree.

¶53

It is settled law that an application under Order XXXVII Rule 4 of the CPC would require to set out special circumstances which prevented a party from appearing or applying for leave to defend. The applicant would also have to establish the relevant facts which would entitle the applicant for grant of leave to defend the suit as held by the Supreme Court in Rajni Kumar v. Suresh Kumar

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NC: 2025:KHC:45160-DB COMAP No. 593 of 2025

¶56

HC-KAR

¶57

Malhotra and another: (2003) 5 SCC 315 . This is a vital difference between an application under Order IX Rule 13 of the CPC and an application under Order XXXVII Rule 4 of the CPC. We have examined the application filed by the appellant under Order IX Rule 13 of the CPC. It does not disclose sufficient grounds for grant of leave to defend. It is also not accompanied by the relevant documents which would be necessary to support an application for leave to defend.

¶58

In view of the above, the present appeal is dismissed.

¶59

Pending application also stands disposed of.

¶60

Sd/(VIBHU BAKHRU) CHIEF JUSTICE

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Sd/(C.M. POONACHA) JUDGE

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KPS List No.: 1 Sl No.: 9

Procedural history

How this case reached the court

AI extract

Order under challenge
Rejection of the appellant's application under Order IX Rule 13 CPC seeking recall/setting aside of the ex parte judgment and decree dated 29.06.2024 passed in Com.O.S.No.15/2024.¶27
Commercial Court, Bengaluru (Hon'ble LXXXII Additional City Civil and Sessions Judge, CCH-83), in Com.Misc.No.66/2024 · 27.10.2025
Prior proceeding
Plaintiff's claim: Rs.11,52,299/- outstanding against four invoices dated 03.07.2019, 10.08.2019, 14.09.2019 and 30.10.2019; account confirmation dated 10.09.2019 acknowledging Rs.15,23,160/-; payment of Rs.3,70,861/- made; balance with interest quantified at Rs.10,72,325/-.¶34
Prior proceeding
Suit Com.O.S.No.15/2024 instituted by the respondent-plaintiff seeking a decree for Rs.22,24,624/- including interest at 24% p.a.; filed as a summary suit under Order XXXVII CPC.¶35
Prior proceeding
Suit registered on 03.01.2024; summons issued to the defendant in Form No.4 on 04.01.2024.¶38
Prior proceeding
None appeared for the defendant on 12.02.2024; defendant proceeded ex parte.¶38
Prior proceeding
On 21.02.2024 the defendant filed an application for recall of the ex parte order dated 12.02.2024; it was allowed with costs quantified at Rs.500/-.¶39
Prior proceeding
The defendant did not file any leave to defend; in its absence the plaintiff was entitled to a summary judgment.¶44
Prior proceeding
After repeated adjournments at which the defendant was unrepresented, the ex parte judgment and decree in Com.O.S.No.15/2024 was finally pronounced on 29.06.2024.¶43
Prior proceeding
Appellant filed an application under Order IX Rule 13 of the CPC to set aside the ex parte decree dated 29.06.2024; the learned Commercial Court rejected it (the impugned order).¶45
Prior proceeding
Appellant's explanation for remaining unrepresented: counsel's ill-health; medical records showed the counsel was under treatment from 05.02.2024 to 26.03.2024.¶46
Prior proceeding
The learned Commercial Court observed that the counsel had appeared on 21.02.2024 but had not appeared at any stage thereafter although the suit was listed on several occasions.¶50

M/S Sugam Packing Industries v. M/S Tiwnkle Impex

Case brief

What is this about?

What did the court decide?

M/S Sugam Packing Industries v. M/S Tiwnkle Impex

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

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