HON'BLE Smt. JUSTICE P.SREE SUDHA
C.R.P.No.2113 of 2021
ORDER
1. This revision is directed against the order dated 09.11.2021 passed in I.A.No.2987 of 2021 in O.S.No.463 of 2017 on the file of the learned Chief Judge, City Civil Court, Hyderabad, whereby the application filed under Section 5 of the Limitation Act, 1963 to condone the delay of 1154 days in filing the petition to set aside the ex parte decree dated 08.02.2018 is dismissed.
2. The petitioner in this revision is the respondent-plaintiff and the respondent is the petitioner-defendant.
3. The trial Court after considering the arguments advanced by both the counsel and also citations filed on behalf of both sides, allowed the application on costs of Rs.10,000/- to be paid on or before 15.11.2021 to the plaintiff. Aggrieved by the said order the plaintiff preferred this revision.
4. Heard the learned counsel appearing for the petitioner- plaintiff and the learned counsel appearing for the respondent- defendant.
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5. M/s.Sri Rama Enterprises-plaintiff filed suit against M/s. S.V.Distilleries Private Limited-defendant seeking recovery of an amount of Rs.45,14,987/-. Summons was served to the defendant and his counsel filed his vakalat on 01.08.2017 and the matter was adjourned for filing of written statement. Even after granting several adjournments, the defendant failed to file its written statement, the trial Court forfeited its right to file written statement on 20.11.2017. P.W.1 was examined on 26.04.2018 and the suit was decreed on 27.04.2018.
6. The plaintiff informed the defendant about the decree and requested for payment of the amount. Though the defendant promised to pay the amount, it could not pay the same and as such the plaintiff got the decree transferred to the Court of Principal District Judge, Bidar, Karnataka, and filed E.P.No.125 of 2019 in which notice was issued to the defendant and the same was served to it in the month of August, 2019 but the defendant did not choose to contest the E.P. and thus it was set ex parte and steps were ordered on 23.01.2020. Later E.P. was converted as Commercial Execution Petition on establishment of Commercial Court and new number was allotted on 13.02.2020 as Com.E.P.No.374 of 2020. The defendant-judgment debtor remained ex parte and steps were ordered for attachment of the 3 schedule property. In view of pandemic, the matter was adjourned for issuance of warrant for attachment of property of the judgment debtor. The defendant appeared before the Executing Court on 23.04.2021 and filed an application to stay the execution, which was allowed on 20.07.2021 subject to the condition of depositing 50% of the decretal amount. In the meantime, the defendant filed I.A.No.2987 of 2021 before the trial Court on 25.06.2021 to condone the delay of 1154 days in filing application viz. I.A.No.2988 of 2021 to set aside the ex parte decree dated 27.04.2018. The defendant also filed W.P.No.201492 of 2021 before the High Court of Karnataka and in an order dated 12.08.2021 stay was granted with a direction to deposit 25% of the decretal amount within two weeks and the defendant has not deposited any amount till today. As the plaintiff contested the I.A., one R.V.Ravi Kumar, Managing Director of the defendant company filed evidence affidavit on 01.10.2021 in lieu of chief-examination and he was cross- examined on the same day and his admissions in the cross- examination are detailed in the evidence affidavit from points (i) to (xxxii) and thus the plaintiff requested the Court to set aside the order of the trial Court.
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7. The plaintiff was dealing with business of selling coal with large quantity by purchasing from M/s.Singareni Collories Company Limited, Khamma District. The defendant purchased coal from the plaintiff and was paying amount regularly. The defendant is due to pay to the plaintiff an amount of Rs.26,19,179.12 paise towards the principal amount with the last purchase on 09.06.2014. No payment was made by it in spite of repeated demands. The defendant acknowledged the debt of the plaintiff on 18.06.2014 and also promised to pay the same by 20.05.2017, but it failed to do so and as such the plaintiff issued legal notice on 29.05.2017, which was served to the defendant on 01.06.2017, and when the defendant failed to pay the amount the plaintiff filed the present suit for recovery of the amount.
8. The defendant in the suit could not file the written statement in spite of granting several adjournments and as such it was set ex parte and a decree was passed by an order dated 27.04.2018. Only after filing of Execution Petition in the month of September, 2021 the defendant filed applications viz. I.A.Nos.2987 and 2988 of 2021 to condone the delay of 1154 days and to set aside the ex parte decree dated 27.04.2018. R.V.Ravi Kumar is the Managing Director of the defendant 5 company stated that the defendant company involved in a scam of Rs.33,00,00,000/- and several cases were pending against it and furnished the details of fifteen cases and he is residing at Pondicherry suffering from anxiety, hypertension and other old age ailments. He has no office at Hyderabad and as such he could not pursue the suit and only when he received summons, engaged an Advocate but his counsel did not inform him about filing of the written statement and thus he did not file the written statement. Therefore an ex parte decree was passed on 27.04.2018. When he received notices in Com.E.P.No.374 of 2020 he came to know about the ex prate decree and therefore he filed an application for staying of the proceedings, which was allowed subject to depositing 50% of the decretal amount. He preferred the writ petition in which he was directed to deposit 25% of the decretal amount. He also submitted that he got good case to succeed and 469 days delay was excluded as per the orders of the Supreme Court during the pandemic and thus requested the Court to condone the delay of 1154 days from 27.04.2018 to 25.06.2021.
9. A common counter was filed by the plaintiff by stating that this application is filed only to postpone the payment of decretal amount. He further stated that no sufficient reasons 6 were assigned by the defendant for condoning the delay and no supporting documents were filed and moreover the defendant indebted to several persons. Bankers filed O.A.No.352 of 2016 against the defendant in Debts Recovery Tribunal, Hyderabad, after passing of the decree in favour of the plaintiff. Though the defendant promised to pay the amount, he could not pay the decretal amount and made the plaintiff to wait for a long time and then taken steps for transfer of the decree. The plaintiff filed E.P.No.125 of 2019 on 13.06.2019 in which notice was ordered on 19.06.2019 and it was served upon the defendant and again he failed to appear before the Court and therefore the defendant was set ex parte on 29.11.2019. Even as on 29.11.2019 he is having knowledge of the ex parte decree dated 27.04.2018 but the defendant came up with the application on 20.07.2021. The defendant has not complied with the orders of the trial Court regarding deposit of 50% of the decretal amount or the order of the Karnataka High Court for deposing 25% of the decretal amount on or before 26.08.2021. In fact, the counsel appearing for the defendant filed vakalat on 01.08.2017, matter is posted for filing written statement on 01.09.2017 and then extended till 22.09.2017 and again on 06.11.2017. As the written statement was not filed on that date 7 the matter is adjourned to 20.11.2017 as a last chance and on that day the Court waited till 4:00 PM and his right of filing written statement was forfeited and posted the matter to 18.11.2017 for plaintiff's evidence. P.W.1 was examined on 26.04.2018 and on 27.04.2018 the suit was decreed. The plaintiff further stated that the defendant is a private limited company and as such the deponent cannot claim that he is the only person looking after the business. Warrant of attachment was issued on 06.04.2021 and as the counsel appearing for the defendant did not represent the matter properly before the trial Court, the only remedy available to him is to file a complaint against his counsel but he has not done so. Therefore, non- appearance of the defendant is wilful and deliberate. It was also stated that the limitation seeking to set aside the ex parte decree expired on 09.03.2018 and as such the direction of the Supreme Court in Suo Motu W.P.(Civil).No.3/2020 is not applicable to the facts of the case and thus requested the Court to dismiss the application.
10. The trial Court after considering the arguments advanced by both the counsel, allowed the same on costs. 8
11. The defendant purchased the coal from the plaintiff but did not pay the amount. The defendant would submit that during the pendency of the proceedings, the quality of the coal supplied by the plaintiff is not with good quality and as such he is having a very good case to succeed. But this fact was never stated by the defendant prior to filing of applications for condoning the delay and to set aside the ex parte decree. Admittedly, the defendant failed to file the written statement and he has not filed any case against the plaintiff stating that he is not entitled for the amount as he supplied poor quality of the coal. For the first time the defendant made this allegation only in the year 2021.
12. Further, suit summons were served to the defendant and he engaged the counsel but could not file the written statement in spite of granting several adjournments. Though the defendant assigned several reasons, they cannot be accepted as it is his duty to pursue the litigation with due diligence. The defendant cannot take advantage of his negligence at a later point of time. The plaintiff in the suit submitted that even after passing of the ex parte decree he informed about the same to the defendant upon which the defendant promised to pay the amount but could not pay the amount and as such he took steps for transfer 9 of the decree. After filing of the E.P. summons were served upon the defendant. The defendant was set ex parte and as such his contention that he did not know about the passing of the ex parte decree till the service of summons in Com.E.P.No.374 of 2020 cannot be accepted. In fact, the defendant made appearance in the E.P. and asked for stay and it was granted subject to deposit of 50% of the decretal amount but he did not deposit the same and approached the High Court by way of filing a writ petition, which was allowed with a condition to pay 25% of the decretal amount and even then the defendant has not deposited a single pie so far. Later the defendant filed the about two applications for condoning the delay and also to set aside the ex parte decree. The argument of the learned counsel for the defendant is that 469 days is exempted in view of the judgment of the Supreme Court cannot be accepted. As the plaintiff in the suit stated that the limitation to file the application to set aside the ex parte decree expired on 09.03.2018 much prior to the passing of the order by the Hon'ble Supreme Court. The reasons stated by the defendant for abnormal delay of more than three years is not explained by him properly and his conduct clearly goes to show that he intended to avoid payment and wilfully kept quiet during the 10 pendency of the suit and even after filing of the E.P. The defendant made his best efforts only to protract the litigation and to drag on the proceedings. The reasons explained by the defendant that he was suffering from old age aliments and involved in a scam are not at all tenable. The defendant mainly contended that his counsel did not file written statement, but he has not initiated any action against the previous counsel to show his bona fides.
13. In the light of the foregoing discussion, this Court finds that the trial Court erred in allowing the application without appreciating the facts properly and is liable to be set aside.
14. In the result, the revision petition is allowed and the order under challenge is set aside.
15. Miscellaneous Petitions, if any, pending in this revision shall stand dismissed in the light of this final order.
____________________ P.SREE SUDHA, J.
10th OCTOBER, 2022.
PGS