Summons served at an under-construction site, and a plaintiff’s affidavit accepted in a single line, were not enough to support a ₹40.18 lakh ex parte decree. The Bombay High Court has held that a plaintiff must establish a claim even when the defendant is absent, and that commercial litigation does not dispense with the rules for serving summons.
Mumbai: A businessman who said he never received the summons has won the setting aside of an ex parte decree in a loan-recovery suit, with the Bombay High Court ordering the suit to be decided afresh [Vipul D. Shah v. Dinesh D. Shah, Karta of Dinesh Kumar Babulal (HUF)].
A Division Bench of Justice G. S. Kulkarni and Justice Dr. Neela Gokhale delivered the judgment on November 4, 2026, and it was uploaded on November 5. The Bench held that the trial court’s sole reliance on the plaintiff’s service affidavit did not establish valid service and denied the defendant an opportunity to be heard.
Mandatory rules, even in a commercial suit
Reading Order V Rules 1, 9, 9A and 10 of the CPC together, the Court held their requirements to be mandatory. Paragraph 12 records that the service affidavit lacked clarity and that no official registry report showed service at the defendant’s registered address in line with those provisions.
Paragraph 13 explains that the Commercial Courts Act, 2015 does not do away with the requirements for effecting and certifying private service of summons. Relying on the affidavit was insufficient here, and the ex parte decree that followed caused serious prejudice.
Why the choice of address mattered
Paragraph 9 faults the trial court for accepting service in one line and for relying across the board on the plaintiff’s affidavit in place of examination-in-chief. Even in an ex parte proceeding, the Bench held, a plaintiff must discharge the burden of prima facie proof of the facts behind the claim, and a decree can follow only after the court has examined the factual and legal basis of that claim.
Account confirmations and other documents, the Bench found, showed that the plaintiff knew other addresses for the defendant. A notice in the pre-institution mediation process had also come back with an endorsement of an incomplete address. On that record, paragraph 10 observes that the choice of the under-construction site appeared deliberate.
The loan claim and the appeal
The plaintiff’s case was that he advanced ₹25 lakh through three cheques in January 2010, that interest at 12% per annum was paid until September 2016, and that the defendant then stopped paying interest. Receipts and confirmations of account supported his demand for ₹40,18,890.
On April 20, 2022, the trial court decreed the suit ex parte and also awarded continuing interest on the principal. Vipul Shah appealed, contending that the summons had gone to an under-construction building where he was not available. He pointed out that the plaint itself gave three addresses and that documents the plaintiff relied on showed others.
The plaintiff defended the service, arguing that service at one of the addresses was enough and that the defendant could be found at the construction site. The High Court was not persuaded.
The suit is back, liability still open
The April 20, 2022 judgment and decree were quashed, and the suit is to be restored for a decision on merits. The defendant has four weeks from restoration to file his written statement or counterclaim, if any, and no further extension will be given. All parties’ contentions were expressly kept open.
The defendant now gets to contest the recovery claim. The ruling does not decide that the loan was never advanced or that nothing is payable.
Case: Vipul D. Shah v. Dinesh D. Shah, Karta of Dinesh Kumar Babulal (HUF)
Case numbers: Commercial First Appeal (St.) No. 24138/2022 with Interim Application No. 3150/2023
Court: Bombay High Court, Civil Appellate Jurisdiction
Bench: Justice G. S. Kulkarni and Justice Dr. Neela Gokhale
Decision: November 4, 2026; uploaded November 5, 2026
Neutral citation: 2026:BHC-AS:45149-DB
Outcome: Ex parte decree set aside; suit restored for adjudication on merits.
