CMA/1888/2026 of M/S H S D BATTERIES (INDIA) PRIVATE LIMITED Vs M/S PLAZA POWER AND INFRASTRUCTURE COMPANY on 6 August 2026

1. Appellant company assails the order dated 10.02.2026 passed by the learned Commercial Court, Alwar, whereby its application for setting aside the ex parte judgment and decree dated 01.03.2025 has been rejected.

2. The brief facts are as follows. The Respondent instituted a suit before the learned Commercial Court, Alwar, for recovery of Rs. 40,00,790/-. Relying on the service report and the Track Consignment Report, the Court proceeded ex parte against the Appellant vide order

(2 of 8) [CMA-1888/2026] dated 29.08.2024. Thereafter, vide ex parte judgment and decree dated 01.03.2025, the Court decreed the suit for the said amount along with interest at 6% per annum from 02.05.2024 till realization. Execution proceedings followed. According to the Appellant, it first learnt of the decree on 12.11.2025, when it was confronted with a warrant of attachment of its property. It then obtained the record and filed an application under Order IX Rule 13 CPC seeking setting aside of the ex parte decree and restoration of the suit. 2.1 However, vide order dated 10.02.2026, the learned Commercial Court rejected the application. It held the application to be barred by limitation under Article 123 of the Limitation Act, 1963. It disbelieved the Appellant's assertion regarding the date of knowledge, having regard to the record of service and the earlier proceedings. 2.2 Hence, this appeal.

3. Learned Senior Counsel for the appellant submits that the impugned order dated 10.02.2026 is contrary to law and to the facts on record. He submits that limitation under Article 123 of the Limitation Act was wrongly computed from 22.08.2025, on the basis of a notice allegedly issued under Order XXI Rule 22 CPC. According to him, limitation had to be reckoned from the date of knowledge of the ex parte decree. He further submits that a notice under Order XXI Rule 22 CPC pertains to execution proceedings. Such a notice cannot form the basis for computing limitation for an application under Order IX Rule 13 CPC. 3.1 Learned Senior Counsel further submits that the Appellant was never duly served with the summons of the suit. The order proceeding ex parte was passed merely on the strength of a Track Consignment

(3 of 8) [CMA-1888/2026] Report. Such a report cannot, by itself, conclusively establish valid service. He submits that the explanation offered, namely non receipt of summons and an internal lapse in communication, constituted sufficient cause and deserved consideration on merits. He adds that the mediation proceedings undertaken before institution of the suit have no bearing on the question of due service of summons. The Appellant's non appearance, he submits, was bona fide. 3.2 Learned Senior Counsel lastly submits that denial of an opportunity of hearing has violated the principle of audi alteram partem. This assumes significance because material triable issues arise in the suit. The learned Commercial Court, he submits, ought to have exercised its jurisdiction under Order IX Rule 13 read with Section 151 CPC. He, therefore, urges that the impugned order dated 10.02.2026 be set aside and likewise, the ex parte judgment and decree dated 01.03.2025 be also set aside, and that Suit No. 238/61/2024 be restored to its original number for adjudication on merits.

4. On the other hand, learned Senior Counsel for the respondent opposes the appeal. It is submitted that the Appellant had been duly served at different stages. Service was first effected during the mediation proceedings under Section 12A of the Commercial Courts Act, 2015, undertaken before institution of the suit. Service was thereafter effected through registered summons in the suit itself. It was further submitted that notices issued in the execution proceedings under Order XXI Rule 22 CPC, including the Dasti notice, were also served upon the Appellant, yet it failed to appear. The Respondent accordingly contended that the Appellant had knowledge of the proceedings well before

(4 of 8) [CMA-1888/2026] 12.11.2025. The application under Order IX Rule 13 CPC was, therefore, barred by limitation.

5. We have heard learned Senior Counsel for the parties and perused the case file.

6. At this stage, before proceeding further, lets us first see as to what weighed with learned commercial court while dismissing the application filed by the Appellant. For better appreciation thereof, it is apposite to reproduce relevant of the impugned order dated 10.02.2026 for ready reference: “9. In the present case, the non applicant instituted the original suit before this Court. Treating service through registered post as sufficient, this Court passed an order on 29.08.2024 to proceed ex parte against the applicant. Thereafter, this Court passed an ex parte decree against the applicant on 01.03.2025.

10. The applicant has filed the present application under Order IX Rule 13 CPC. It states that it acquired knowledge of the judgment and decree on 12.11.2025, when this Court issued a warrant of attachment. The non applicant, in its reply, has principally objected that the application is wholly barred by limitation, apart from raising other grounds. Article 123 of the Limitation Act, 1963 prescribes the limitation for setting aside an ex parte decree. The period is 30 days. Where the summons was duly served, the period runs from the date of the decree. Where the summons was not duly served, the period runs from the date on which the applicant acquired knowledge of the decree. The execution file is also before us today, and both parties are present. The execution application was presented by the non applicant on 06.06.2025. By order dated 01.08.2025, this Court directed issuance of notice to the judgment debtor under Order XXI Rule 22 CPC and fixed 12.09.2025 as the date of hearing. The notice under Order XXI Rule 22 CPC was issued on 07.08.2025, fixing 12.09.2025 for hearing. The affidavit and report of the process server clearly record that a copy of the notice was received by the applicant company under its seal on 22.08.2025. The process server has further reported that the company's Manager, Hitesh Kumar, was found present and was handed a copy of the notice. Thus, on the record, the applicant clearly acquired knowledge of the judgment and decree on 22.08.2025. Its assertion that it first acquired knowledge on 12.11.2025 is not bona fide.

11. Even if limitation is computed from the date of knowledge, the application had to be filed within 30 days therefrom under Article 123 of the Limitation Act, 1963. The notice under Order XXI Rule 22 CPC was served on 22.08.2025. The applicant thereby acquired full knowledge of the judgment and decree on that date.

(5 of 8) [CMA-1888/2026] The present application, however, was presented on 01.12.2025, well after the expiry of 30 days, and is thus filed with considerable delay. The applicant's plea that the delay occurred because its Manager did not inform it of the notice dated 22.08.2025 does not merit acceptance. The notice was received by the Manager of the applicant company. It bears the company's seal and the Manager's signatures. The applicant concealed this fact while appearing before this Court. Further, the applicant has proceeded on the footing that it acquired knowledge on 12.11.2025 and that the application is within limitation from that date. There is neither any pleading, nor any prayer, nor any separate application for condonation of the delay occasioned by the prior knowledge and receipt of the notice on 22.08.2025. A bare oral statement that the delay may be condoned is not in accordance with the intention of law. The application is, therefore, not maintainable, being beyond limitation.

12. Since the application is not maintainable on the ground of limitation, it would not be just and proper to make any observation on its merits.

13. Accordingly, the applicant's application under Order IX Rule 13 CPC is rejected and dismissed as barred by limitation.”

7. In the application filed by the appellant seeking to recall the ex parte judgment and decree (translated into English), it has been stated as under: “2. That during the course of proceedings in the said case, orders were passed for issuance of summons/notices through registered post for securing the appearance of the applicant/judgment-debtor. However, the summons/notices so issued to the applicant/judgment-debtor were never received by him, nor did the applicant/judgment-debtor have any knowledge regarding the said suit or the summons/notices.

3. That, due to having no knowledge regarding the said suit and the summons/notices and due to non-receipt thereof, the applicant/judgment- debtor was unable to appear before this Hon’ble Court and could not appear before this Hon’ble Court during the course of proceedings in the said case.

4. That, on account of the non-appearance of the applicant/judgment- debtor, this Hon’ble Court proceeded ex parte against the applicant/judgment-debtor on 29.08.2024, and the evidence of the plaintiff/decree-holder was recorded ex parte on the record. Thereafter, judgment and decree were passed in the said case on 01.03.2025 in the absence of the applicant/judgment-debtor.

5. That by the judgment and decree dated 01.03.2025, the plaintiff was awarded a sum of Rs. 40,00,790/- (Rupees Forty Lakhs Seven Hundred and Ninety only) against the defendant/applicant, along with interest at the rate of 6% per annum from the date of institution of the suit, i.e. 02.05.2024, till the date of judgment, and thereafter till recovery. A certified copy of the judgment and decree dated 01.03.2025 is annexed with the present application for the kind perusal of this Hon’ble Court.

6. That the applicant/judgment-debtor came to know about the aforesaid suit, judgment and decree for the first time on 12.11.2025, when an employee of the Court of the learned Additional District and Sessions Judge came to the workplace of the applicant/judgment-debtor, situated at Bhiwadi, Tehsil Tapukara, District Khairthal-Tijara,

(6 of 8) [CMA-1888/2026] Rajasthan – 301019, with a warrant of attachment of property under Order XXI Rule 30 of the Code of Civil Procedure.

7. That upon gaining knowledge on 12.11.2025 regarding the notice relating to the warrant of attachment of property, the applicant/judgment-debtor immediately moved an application for obtaining certified copies of the plaint and the record of the execution proceedings and appeared before this Hon’ble Court in the execution proceedings on 24.11.2025.

8. That after the applicant/judgment-debtor moved the application for obtaining certified copies of the court record, the certified copies of the plaint, judgment and decree dated 01.03.2025 were received by the applicant/judgment-debtor on 25.11.2025.

9. That the applicant/judgment-debtor had never had any knowledge regarding the issuance of summons/notices in the aforesaid judicial proceedings/suit and did not deliberately or negligently disobey any process of this Hon’ble Court and/or any summons/notices. The applicant/judgment-debtor, in good faith, remained unable to appear before this Hon’ble Court.

10. That the applicant/judgment-debtor has sufficient and competent evidence available to contest the aforesaid plaint filed by the plaintiff/decree-holder. Upon such evidence being produced on the court record, dismissal of the plaint of the plaintiff/decree-holder is inevitable. It is, therefore, just, necessary and in the interest of justice that the aforesaid ex parte judgment and decree be set aside on merits and the applicant/judgment-debtor be afforded an opportunity to present his case and to file his evidence and written statement. The plaintiff/decree-holder has concealed the true and correct facts and evidence from this Hon’ble Court and has presented false, untrue, concocted and distorted facts and evidence before this Hon’ble Court and has thereby obtained the judgment and decree dated 01.03.2025 in his favour, which is liable to be set aside.

11. That, in compliance with the principle of natural justice, namely, “Audi Alteram Partem”, i.e. “hear the other side”, which is a fundamental principle of natural justice, it is also just and reasonable that an opportunity of hearing be afforded to the applicant/judgment- debtor.

12. That the applicant/judgment-debtor is fully ready, willing and prepared to file his written statement and produce supporting evidence.

13. That setting aside of the judgment and decree dated 01.03.2025 passed by this Hon’ble Court would cause no legal prejudice to the plaintiff/decree-holder. However, if the present application is not allowed and the judgment and decree dated 01.03.2025 is not set aside and the applicant/judgment-debtor is not afforded an opportunity of hearing, the applicant/judgment-debtor shall suffer such legal prejudice which cannot be compensated, and the aforesaid plaint would also not be adjudicated on its merits. Therefore, it has become necessary to prefer the present application before this Hon’ble Court.

14. That upon gaining knowledge regarding the aforesaid suit/execution proceedings on 12.11.2025 and upon receiving the certified copies of the record of the judicial proceedings on 25.11.2025, the present application is being preferred before this Hon’ble Court without any delay and is being filed within the prescribed period.”

8. We have examined the reasons stated in the application. The application is duly supported by the sworn affidavit of the representative of the Appellant company. There is no material on record to impeach the deposition of the applicant/appellant. The explanation

(7 of 8) [CMA-1888/2026] offered for the non appearance is neither vague nor an afterthought. It appears bona fide and probable. It is well settled that procedural rules are handmaids of justice and not its mistress. They are designed to advance the cause of justice, not to defeat it. It is equally settled that, as far as possible, a lis should be decided on merits and not on default. The ex parte judgment and decree visits the Appellant with serious civil consequences. Denial of an opportunity to contest the suit on merits would cause serious and irreversible prejudice to the Appellant. On the other hand, the prejudice, if any, caused to the Respondent is limited to the loss of time. Such prejudice is capable of being adequately compensated in monetary terms. Having regard to the above, and in the larger interest of justice, we are inclined to accept the appeal.

9. Accordingly, subject to payment of Rs. 1,00,000/- as compensation to the Respondent for the loss of time occasioned by the Appellant's non appearance before the learned Commercial Court, the impugned order dated 10.02.2026 is hereby set aside. Consequently, the order dated 29.08.2024, whereby the Appellant was proceeded against ex parte, as well as the ex parte judgment and decree dated 01.03.2025 passed pursuant thereto, also stand set aside. The suit is restored to the file of the learned Commercial Court for adjudication on merits in accordance with law. The compensation shall be paid on or before the next date fixed before the learned Commercial Court. The parties are directed to appear before the learned Commercial Court on the date to be notified. Suit No. 238/61/2024 shall stand restored to its original number for adjudication on merits.

10. Also, the amount of Rs. 10,00,000/- already deposited before the Executing Court shall also be disbursed to the Respondent. The disbursement shall be subject to an undertaking that, in the event the

(8 of 8) [CMA-1888/2026] suit is ultimately decreed in favour of the Appellant, the said amount shall be refunded. The refund shall carry interest at 9% per annum.

11. The disbursement of Rs. 10,00,000/- shall remain subject to the outcome of the suit on merits before the learned Commercial Court. The present order has been passed only to resolve the controversy at hand. It shall not be treated as a reflection on the merits of the case of either side. Accordingly, the present Civil Miscellaneous Appeal is allowed.

12. All pending application(s) also stand disposed of. (ASHUTOSH KUMAR),J (ARUN MONGA),J 38/AARZOO/TUSHAR