Vipul D. Shah vs Dinesh D. Shah Karta Of Dinesh Kumar Babulal (Huf)

CNR No : HCBM010406932022

2026:BHC-AS:45149-DB
1_COMFA(ST)_24138_2022.DOC
Prasad
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL FIRST APPEAL (ST) NO. 24138 OF 2022
WITH
INTERIM APPLICATION NO.3150 OF 2023

Vipul D. Shah
Age 52 years, Occupation: Business
th
residing at 9 Floor, Vraj Apartment,
Plot No.12, JVPD, Vile Parle (W), Mumbai
400 049 ...Appellant/(Original
Defendant)
Versus
Dinesh D. Shah
Karta Of Dinesh Kumar Babulal (HUF)
Age 72 years, Occupation: Business
having its office at 345,
st
Badamwadi, 1 Floor, Kalbadevi Road,
Mumbai 400002 ...Respondent/(Original
Plaintiff)
_______
Mr. Aseem Naphade a/w A. Patel, Viloma Shah, Harshad Vyas and Ishita Desai
i/by AVP Partners, for the Appellant.
Mr. Jagdish Nagar, for the Respondent.
_______
CORAM: G. S. KULKARNI &
DR. NEELA GOKHALE, JJ.
DATE: 04 NOVEMBER 2026
Judgment: (Per Dr. Neela Gokhale, J.)
1. By this Appeal, the Appellant assails the Judgment and Order dated
20.04.2022 passed by the City Civil Court at Mumbai in Commercial Summary
Suit No. 1340 of 2021, whereby the suit filed by the Respondent stands decreed
ex-parte, whereas the learned Trial Judge has directed the Appellant to pay
₹ 40,18,890/- to the Appellant / Defendant, along with interest at 12% per annum
PRASAD
RAJENDRASING
RAJPUT
on the principal outstanding amount of 25,00,000 to the Respondent from the ₹
Digitally signed by
PRASAD
RAJENDRASING
RAJPUT
Date: 2026.11.05
13:22:35 +0530
date of filing the suit until the said amount is realized.
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2. The facts of the case in brief are as under:

2.1 The Appellant and the Respondent were traders. The Respondent
₹
advanced a loan of 25,00,000 to the Appellant herein by issuing 3 cheques
dated 11.01.2010, 15.01.2010, and 15.01.2010, respectively. The
Respondent contends that the Appellant executed receipts dated 11.01.2010,
15.01.2010 and 15.01.2010 acknowledging receipt of the said cheques. It
was also agreed that the Appellant would repay the loan amount with
interest at 12% per annum. The Respondent claims that the Appellant paid
interest at 12% per annum on the aforesaid amount advanced to him till
September 2016, and that he also issued a confirmation of account on
01.04.2018. However, thereafter, the Appellant stopped paying the interest.
The Respondent thus issued a notice through his advocate dated
04.03.2021 calling upon the Appellant to make the outstanding payment.
However, the Appellant failed to do so and, therefore, the Respondent
claims that an amount of 40,18,890/- is outstanding against the Appellant. ₹
Hence, the Respondent instituted Commercial Suit No. 240 of 2021 before
the City Civil Court, Mumbai.
3. According to the Appellant, the Writ of Summons along with the copy of
the plaint was purportedly served upon him at Parini- I, 7 A, Shah Industrial
Estate, Andheri West, Mumbai 400 053. The Appellant contended that he never
received the summons, as the address to which it was sent was of a building under
construction and uninhabitable. Since the building was under construction and not
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in use at the relevant time, the Appellant was not available at the said address. After

serving a copy of the summons and the plaint at the said address and not receiving
an acknowledgement, the Respondent filed an affidavit of service affirming that the
writ of summons and the plaint were served on the Appellant. Based on the
affidavit of service, the learned Judge passed an order that the suit proceed ex-parte
against the Appellant. Thereafter, based on the Respondent's affidavit in lieu of
examination-in-chief, the learned Judge proceeded to decree the suit ex-parte. The
Appellant assails this ex-parte Judgment, order, and decree in the present
Commercial Appeal.
4. We have heard Mr Aseem Naphade, learned counsel representing the
Appellant and Mr Jagdish Nagar, learned counsel for the Respondent. We have also
gone through the case records with their assistance.
5. Mr Naphade submitted that the Respondent provided 3 addresses in the
cause title of the plaint. However, for reasons best known to the Respondent, the
Respondent deliberately served the summons and the plaint only at the address
where the building was under construction. According to Mr Naphade, the said
address was only a site and sales office where only some construction workers and
security personnel may have been present. The Appellant is not aware whether the
summons was served on any employee of the developer, security personnel, or
construction worker at the site, as construction work was ongoing. Mr Naphade
contended that, the service is bad in law, as the Appellant is an individual without
any independent/employee security guard representing him. Thus, the service of
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the suit according to Mr Naphade is not in accordance with Order 5 Rule 15 of the

Code of Civil Procedure, 1908 (‘CPC). Mr Naphade also submitted that the
Respondent was well aware of the addresses at which the Appellant was available,
as the statement of sub-confirmation of accounts for the year 2015-16 was
addressed by the Appellant to the Respondent at the address of Deepak Building,
401 SV Road, Ville Parle (W), Mumbai – 56 (Deepak Building address). In these
circumstances, the Respondent had provided the Deepak Building address in the
cause-title of the plaint. Similarly, the sub-confirmation of accounts and the
statements for the years 2016-17 and 2017-18 were also addressed to the Deepak
Building address, which is the Appellant's address. In these circumstances, the
Respondent was well aware of the Appellant's correct address and deliberately
issued the writ of summons to the under-construction site address.
6. Mr Naphade contended that the impugned order is based on an ex-parte
account narrated by the Respondent and the Appellant had no opportunity to
defend himself on the merits of the case. He submitted that the plaint was filed in
or around September 2021 and the matter was listed for the first time on
24.01.2022, on which day the learned Judge concluded that the writ of summons
was duly served only on the basis of the Respondent's affidavit of service. Finally,
Mr Naphade contended that the order was passed during the COVID-19
pandemic, when an SOP was in place stating that no adverse orders were to be
passed during the pandemic. Thus, he submitted that the learned Judge ought to
have directed the Respondents to attempt service at one more address mentioned
by him in the array of parties in the cause-title of the suit. Mr Naphade thus stated
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that the Appellant has a good case on merits and, since the Respondent deliberately

served the summons only at one address, which was an under-construction site, the
impugned judgment and order be set aside.
7. Mr Nagar, learned Counsel for the Respondent, attempted to defend,
contending that despite three addresses provided by him in the cause title of the
suit, the Appellant, as per his instructions, was very much available at the under-
construction site. According to Mr Nagar, a plaintiff need not serve the Defendant
at all addresses mentioned in the cause-title; service at any one address is sufficient
and good service. He also pointed to the service affidavit filed by him before the
Trial Court, stating that service effected by him on the under-construction site was
good service. Mr Nagar further submitted that the impugned judgment and order
is passed by the learned Trial Court is a considered judgment on the basis of
evidence laid by him before the Court and the same does not require any
intervention by this Court. He also relied on a decision of the Supreme Court in
1
Indu Bhushan v. Munna Lal and Anr. , to suggest that notice through a process
server is not mandatory and notice at any one address of the defendant is sufficient.
He thus prays that the Appeal be dismissed.
8. We have heard both the counsel and have examined the record with their
assistance.
9. A bare perusal of the impugned judgment and order indicates that the Trial
Court has in one line accepted the service affidavit of the Respondent to hold that
1 (2007) 14 SCC 42
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the Appellant was duly served with the writ of summons, referring to its order

dated 25.02.2022, directing the suit to proceed ex-parte. We have also examined
the reasons recorded by the Trial Court to decree the suit. The Trial Court does not
appear to have recorded any finding on the facts of the case as averred by the
Respondent, save for blanket reliance on the Respondent's affidavit filed in lieu of
the examination-in-chief. The confirmation of accounts for the financial years
alleged to have been signed by the Appellant has been accepted only on the basis of
the averments of the said affidavit. It is a settled position of law that even if the suit
is to be proceeded ex-parte against the defendant, the plaintiff must discharge the
burden of prima facie proof qua the existence of relevant facts and circumstances
out of which the cause of action has arisen. The Court must pass a decree only after
ascertaining the factual and legal veracity of the plaintiff’s claim. The plaintiff's case
must stand on its own legs, and the plaintiff must move its case before the Court
can pass a decree in its favour.
10. Insofar as the contention of the Appellant regarding absence of service is
concerned, we have examined the record. The plaint indicates three addresses
furnished by the Respondent in the cause-title of the suit. There is no explanation
given by the Respondent and recorded by the learned Trial Court as to why the
writ of summons was not issued on the other addresses, especially when the record
itself indicates that the confirmation of account statements for the financial years
2015-16, 2016-17 and 2017-18, placed on record and purportedly proved by the
Respondent, clearly mentioned the address of the Appellant to be the Deepak
Building address. Further, the Advocate notice issued on behalf of the Respondent
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was addressed to the Appellant at Smag House, Sarojini Road Extension, Ville

Parle (W), Mumbai – 56. Furthermore, the non-starter report for the pre-
institution mediation clearly indicated that the notice issued to the Appellant was
returned with a postal endorsement as ‘incomplete address’. The cheques for the
amount advanced to the Appellant were received on the Appellant's letterhead.
The address of Smag House appears on the said letterhead. The Respondent relied
on these receipts to prove his case before the Trial Court. These documents thus
indicate that the Respondent knew the Appellant's correct address, and it appears
that the Respondent deliberately chose the under-construction site address to serve
the writ of summons and the plaint on the Appellant.
11. We also note the relevant provisions of the CPC on service of suit summons
namely Order V Rule 1, 9, 9A and 10.
12. A conjoint reading of Rules 1, 9, 9A and 10 indicates that the compliance
mandated by these provisions is mandatory. The question of fact is whether the
affidavit of service tendered on behalf of the Respondent satisfies compliance with
these provisions. In our opinion, the Respondent's affidavit of service does not
satisfy the elementary requirements of the CPC Rules. The addresses of the
Appellant are clearly mentioned in the cause-title, but there is no clarity in the
affidavit of service, nor any official report of the Registry of the Civil Court that the
summons was duly served or effected on the registered address of the Appellant so
as to accept such service to be in compliance with Order V Rule 1, 9, 9A and 10 of
the CPC.
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13. We find that the Commercial Courts Act, 2015, also does not in any manner

dispense with the requirements of Order V Rule 1, 9, 9A and 10 of the CPC
insofar as the manner in which private service of suit summons must be effected
and certified by the Court. In the present case, the Trial Court’s reliance solely on
the affidavit of service filed by the Respondent does not, in any manner, satisfy the
CPC's mandate for valid service. By denying the Appellant an opportunity to be
heard, the Trial Court has caused serious prejudice, as the Appellant suffered an ex-
parte decree. We have also perused this Court's decision in Best Industries
Corporation thr its Mr.Jowender Singh Sethi v. the Standard Products
2
Manufcaturing Co. . The legal aspect discussed therein is directly applicable to the
facts of the present case.
14. We have also perused the decision relied upon by Mr Nagar. The facts in
Indu Bhushan (supra) are completely distinct from the facts of the present case.
Moreover, the legal proposition in Indu Bhushan (supra) supports the Appellant's
contention. The Supreme Court has clearly held that service through the Court's
process is mandatory. Moreover, in Indu Bhushan (supra), service was effected by
several process servers who gave notice of service, and their endorsements were on
record. Moreover, in Indu Bhushan (supra), the Court also examined the postman
who effected service by registered post.
15. In the light of the above discussion, we are of the clear opinion that the
Appellant has made out a case for setting aside the ex-parte decree. In view of the
same, we dispose of this Appeal in terms of the following Order:
2 2025: BHC-AS:4692-DB
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ORDER

th
i. The Impugned Judgment, Order and decree dated 20 April 2022,
passed by the City Civil Court, Mumbai, in Commercial Suit
No.1343/2021, is quashed and set aside. The said suit is directed to be
restored and decided on merits.
ii. The Appellant shall file his Written Statement / counter-claim, if any,
within a period of four weeks from the date on which the suit is restored to
its original file without any further extension.
iii. All contentions of all the parties are expressly kept open.
16. Thus, the appeal stands disposed of in the aforesaid terms.
17. Interim Applications, if any, do not survive and are disposed of accordingly.
(DR. NEELA GOKHALE, J) (G. S. KULKARNI, J.)
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