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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  No(s). 11227  OF 2018 (Arising out of SLP(C)No.1491 of 2015)

KHODIYAAR ROLLING MILLS                            Appellant(s)

                               VERSUS

PASCHIM GUJARAT VIJ COMPANY LTD.                   Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of judgment and order dated 25th

July, 2014 passed by the High Court of Gujarat at Ahmedabad in

Special Civil Application No.15454 of 2013 in and by which the

High Court affirmed the order of the court below refusing to

set aside the ex-parte decree passed by the trial court in

Special Civil Suit No.56 of 2006.

(3) The appellant was running a mill and the respondent was a

distributer of the electricity for the area including the mill

in the premises of the appellant.  There was a outstanding due

of Rs.63,41,994.20.  The respondent filed Special Civil Suit

No.56 of 2006 for recovery of the said outstanding amount.  In

the said suit the appellant has not entered appearance and an

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ex-parte decree was passed on 17th April, 2007.  The appellant

herein has filed an application under Order 9 Rule 13 of the

C.P.C. to set aside the ex-parte decree which was filed with

delay of twenty months and thirteen days.  The Trial Court held

that the appellant has not satisfactorily explained the delay

of filing the said application under Order 9 Rule 13 of the

C.P.C. and accordingly dismissed the same.  In the revision the

said order was affirmed by the High Court holding that the

appellant had knowledge about passing of the ex-parte decree.

(4) We have heard Mr. Jay Savla, learned counsel appearing for

the appellant and Mr. Pradeep Misra, learned counsel appearing

for the respondent and also perused the impugned judgment.

(5) By order dated 8th January, 2015 this Court has directed

the  appellant  to  deposit  a  sum  of  Rs.70,00,000/-  (Rupees

Seventy Lakhs) with the respondent without prejudice to his

contention.  In compliance thereof, the appellant has deposited

Rs.70,00,000/-  (Rupees  Seventy  Lakhs)  with  the  respondent.

Since  the  appellant  has  shown  his  bona  fide by  depositing

Rs.70,00,000/- (Rupees Seventy Lakhs), without going into the

merits of the case, with a view to afford an opportunity of

hearing  to  the  appellant  in  the  suit,  the  ex-parte  decree

(dated 17.4.2007) passed in Special Civil Suit NO.56 of 2006 is

set aside and this appeal is allowed.  The Trial Court is

directed to restore Special Civil Suit NO.56 of 2006 to its

original number and proceed with the same in accordance with

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law.  Since the said suit is of the year 2006 the same shall be

decided as expeditiously as possible.  The appellant shall file

his  written  submission  within  four  weeks  from  today.   As

observed by this Court by Order dated 8th January, 2015 the

deposit  of  Rs.70,00,000/-  (Rupees  Seventy  Lakhs)  will  be

subject  to  the  final  outcome  of  the  dispute  between  the

parties.    

(6)  No costs.      

..........................J.                 (R. BANUMATHI)

..........................J.         (INDIRA BANERJEE)

NEW DELHI, NOVEMBER 20, 2018.