Bombay High Court
Acc Ltd. vs Prabhat Builders on 28 April, 2026
Author: Abhay Ahuja
Bench: Abhay Ahuja
21-S-223-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 233 OF 2024
ACC LTD. )... PLAINTIFF
V/s.
PRABHAT BUILDERS AND OTHERS )... DEFENDANTS
Mr.Anirudha Hariani a/w. Mr.Anagh Pradhan and Athira Nair i/by
Divya Shah Associates, Advocate for the Plaintiff.
None for the Defendants.
CORAM : ABHAY AHUJA, J.
DATE : 28th April 2026 P.C. :
1. Pursuant to order dated 23rd March 2026, today when the matter is called out, Mr.Hariani, learned Counsel for the Plaintiff, in support of his submission that no useful purpose would be served by appointing a Court Commissioner to record the cross-examination of the Plaintiff's witness, has firstly drawn this Court's attention to Order VIII Rule 10 of the Code of Civil Procedure, 1908 ("CPC") and also to two judgments, one of this Court in the case of Gac Bunker Fuels Ltd. vs. DSV Gerimal (IMO No.7932240) and Another1 and the other of the Hon'ble Delhi High Court in the case of Sports Technologies Pvt. Ltd. and Another vs. Aditya Yadav and Others2.
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2. Mr.Hariani, learned Counsel, submits that as in the facts of this case, as also in the case of Gac Bunker Fuels Ltd. vs. DSV Gerimal (IMO No.7932240) and Another (supra) although writ of summons had been served, however, despite service, no appearance had been entered and since time to file written statement had expired, as also in this case, this Court had under Order VIII Rule 10 of the CPC, decreed the Suit without even directing the Plaintiff to file the original documents. That, this Court may also consider decreeing the Suit, although the documents have been filed by the Plaintiff herein and also marked as exhibits.
3. Mr.Hariani further submits that even in the Delhi High Court case in Sports Technologies Pvt. Ltd. and Another vs. Aditya Yadav and Others (supra), no written statement had been filed despite lapse of the statutory period and the Court had noted that no useful purpose would be served putting the matter to trial as no defence had come forward on behalf of the Defendants and that time of the Court should not be wasted in directing ex-parte evidence to be led and accordingly, under Order VIII Rule 10 of the CPC decreed the Suit.
4. While the two decisions cited by Mr.Hariani do elucidate the law as per Order VIII Rule 10 of the CPC which empowers the Court to avk 2/6 ::: Uploaded on - 28/04/2026 ::: Downloaded on - 29/04/2026 09:11:26 ::: 21-S-223-2024.doc pronounce judgment against the Defendants, who has not filed written statement as required under Rule 1 or Rule 9 of the CPC, however, the said Rule 10 of the CPC also provides that the Court may make such order in relation to the Suit as it thinks fit, where a party from whom written statement is required under Rules 1 or 9 of the CPC fails to present the same within the time permitted or fixed by the Court. No doubt, no written statement has been filed in the facts of this case, however, that does not foreclose the right of the Defendants to cross- examine the Plaintiff's witness, and therefore, this Court had directed the filing and serving of the Plaintiff's evidence and which has also been marked as exhibits along with the documents.
5. It is observed from the Affidavit of service dated 21 st April 2026 that although an attempt was made to serve the Affidavit of evidence along with Compilation of documents upon the Defendants, however, the packet has been returned with the remarks "No such person in the address" and "Missent" which obviously is not a good service.
6. Considering the nature of the prayers sought in the Suit and particularly prayer clauses (c) and (f) as submitted by Mr.Hariani, in the interest of justice, this Court is of the view that a Commissioner be avk 3/6 ::: Uploaded on - 28/04/2026 ::: Downloaded on - 29/04/2026 09:11:26 ::: 21-S-223-2024.doc appointed in the matter and the Defendants be given an opportunity to cross-examine the Plaintiff's witness. The said order be published in two daily newspapers, one in English and one in Marathi, circulating in the area where the Defendants were last known to reside or carry on business, giving two weeks' advance notice in the newspapers to appear before the Commissioner on a fixed date and time, as per the Commissioner's convenience, to cross-examine the Plaintiff's witness viz. Ms.Rashmi Rajesh.
7. Mr.Hariani, learned Counsel for the Plaintiff, suggests the name of Mr.Udayan Shah, learned Counsel of this Court, for appointment as a Commissioner to record the cross-examine the Plaintiff's witness.
8. Accordingly, Mr.Udayan Shah, learned Counsel of this Court, is appointed as Commissioner to record the cross-examination of the Plaintiff' witness under the following directions :
(a) The Commissioner is at liberty to exercise discretion under Order XVII Rule 4(4) of the Code of Civil Procedure, 1908, to note the demeanour of the witnesses where necessary.
(b) All cross-examination shall be conducted strictly in question and answer form.
(c) The Commissioner will also be at liberty to direct that the whole or any part of the cross-examination should be video avk 4/6 ::: Uploaded on - 28/04/2026 ::: Downloaded on - 29/04/2026 09:11:26 ::: 21-S-223-2024.doc recorded for later reference of the Court. Should that be done, the original audio visual recording will be submitted along with the Commissioner's Report to the Registry.
(d) Liberty to the parties as also to the Commissioner to apply in case of difficulty.
(e) All re-examination will be conducted only in court.
(f) Costs of the commission shall be borne equally by the parties.
(g) Parties shall also pay costs of Rs.500/- per hearing to the Court Clerk who attends the commission with Court Papers. This is required since these clerks attend the commission in addition to their regular duties and outside their normal working hours.
(h) The Commissioner is not to permit any applications for adjournment on dates previously fixed, except where absolutely unavoidable. Counsel's inconvenience or unavailability does not constitute such unavoidability.
9. The contact details of Mr.Udayan Shah are as under :
Name : Mr.Udayan Shah,, Advocate
Address : Maker Chamber V, No.319,
3rd Floor, 221, Nariman Point,
Mumbai - 400 021.
Mobile No. : 022-2282 2560
Email Id : [email protected]
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21-S-223-2024.doc
10. Parties and Counsel to co-operate with the learned Commissioner and to equally bear his costs, charges and expenses.
11. It is made clear that if the Defendants do not appear before the Commissioner on the fixed date and time, as fixed by the Commissioner, giving two weeks advance notice in the newspapers, this Court will on the basis of the report of the Commissioner, consider that the Defendants do not wish to cross-examine the Plaintiff's witness and list the matter for hearing.
12. Let the learned Commissioner submit his report preferably by 23rd June 2026.
13. List on 23rd June 2026.
(ABHAY AHUJA, J.) ARTI VILAS KHATATE Digitally signed by ARTI VILAS KHATATE Date: 2026.04.28 21:48:49 +0530 avk 6/6 ::: Uploaded on - 28/04/2026 ::: Downloaded on - 29/04/2026 09:11:26 :::