Madras High Court
M/S.Accord Metropolitan vs M/S.Orkin Pest Solutions (India) ... on 26 February, 2021
C.R.P.(NPD).Nos.204 and 205 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(NPD).Nos.204 and 205 of 2020
and
C.M.P.No.1140 of 2020
M/s.Accord Metropolitan,
Rep. by its General Manager,
No.35, G.N. Chetty Road,
T.Nagar, Chennai - 600017. ... Petitioner
Vs.
M/s.Orkin Pest Solutions (India) Pvt. Ltd.,
Rep. by its General Manager M.Thomas,
No.333, 1st floor, MTH Road,
Villivakkam, Chennai - 600049. ... Respondent
Civil Revision Petitions are filed under Section 115 of the Civil
Procedure Code, to set aside the fair and decreetal order dated 31.01.2017
passed by the Learned IV Assistant Judge, City Civil Court, Chennai in
I.A.Nos.298 and 299 of 2016 in O.S.No.3169 of 2011.
For Petitioner : Mr.Ashok Menon
For Respondent : Mr.Kingsly Solomon
https://www.mhc.tn.gov.in/judis/
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C.R.P.(NPD).Nos.204 and 205 of 2020
ORDER
These Civil Revision Petitions have been filed against the fair and
decreetal order dated 31.01.2017 passed by the Learned IV Assistant Judge,
City Civil Court, Chennai in I.A.Nos.298 and 299 of 2016 in O.S.No.3169 of
2011.
2. The respondent herein is the plaintiff in the suit. The suit was filed
for recovery of money directing the defendant to pay a sum of Rs.1,02,579/-
with further interest at the rate of 18% per annum from the date of filing of the
suit till the date of realization.
3. The plaintiff has submitted that he is running a business of Pest
Control and accordingly the defendant had engaged him in Hotel Industry on
05.02.2010 by an agreement dated 12.02.2010 for a period of one year from
1st March 2010 to 28th February 2011 and the defendant should pay
Rs.31,000/- per month plus applicable service taxes. Rs.1,29,136/- was paid
for the month of March, April, May and June 2010 and from July onwards, the
defendant had not paid any money to the plaintiff and the plaintiff had
demanded the outstanding payment of Rs.1,02,579/-. The defendant by email
dated 16.09.2010 unilaterally terminated the annual contract and the plaintiff
had issued a letter to the defendant regarding the bill amount due. By letters
dated 04.10.2010 and 23.10.2010 remainder mails were also sent to the
defendant for making their outstanding payment, but the same was not
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C.R.P.(NPD).Nos.204 and 205 of 2020
accepted. The defendant had levelled frivolous allegations without paying the
said due amount. Hence he prayed for recovering the said money.
4. The defendant had not filed any written statement. Since they had
not appeared before the Court, the Court below had disposed of the suit on
06.12.2012 and directed the defendant to pay a sum of Rs.1,02,579/- with
18% interest from 31.03.2011 till the date of realization.
5. The respondent / plaintiff had filed E.P.No.5100 of 2014 for
executing the decree they have obtained. Totally they claimed a sum of
Rs.1,79,436/- and they prayed for attaching and sale of movable properties of
the Judgment debtor situated at No.35, G.N.Chetty Road, T.Nagar, Chennai
under Order 21 Rule 43 and 64 of CPC to recover the E.P. amount. The said
E.P. was filed on 06.11.2014. In the year of 2015, the petitioner / defendant
filed the above two petitions in I.A.Nos.298 and 299 of 2016 under Order 9
Rule 13 of CPC to set aside the exparte decree dated 06.12.2012 passed in
the above suit and under Section 5 of the Limitation Act to condone the delay
of 898 days in filing the petition to set side the exparte decree dated
06.12.2012.
6. The Court after hearing the parties had dismissed the above said
applications. Aggrieved by the same, the petitioner / defendant has filed these
Civil Revision Petitions before this Court.
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C.R.P.(NPD).Nos.204 and 205 of 2020
7. Heard the learned counsel for the petitioner and the learned counsel
for the respondent, and perused the materials available on record.
8. The I.A.Nos.298 and 299 of 2016 are filed to set aside the exparte
decree dated 31.01.2017 and condone the delay in filing those petitions.
9. Originally the suit is filed by the respondent / plaintiff seeking for a
recovery of Rs.1,02,579/- with 18% interest per annum from the date of filing
of the suit till the date of realisation of the amount on the ground that the
defendant had terminated the contract unilaterally despite the respondent
plaintiff had extended his service during the contractual period between
March 2010 to February 2011 where he claimed that the contract was
terminated on 16.09.2010 abruptly. Even though the respondent / plaintiff has
rendered service during the month of July, August and September 2010, the
agreed amount was not paid to them. The suit came to be decreed in favour
of the respondent / plaintiff by Judgment and Decree dated 06.12.2012, which
was an exparte decree. As against which, the present Civil Revision Petitions
have been filed.
10. It is seen that only after execution petition was filed in 2014, the
revision petitioner has filed the I.A.Nos.298 and 299 of 2016 seeking the
above stated reliefs.
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C.R.P.(NPD).Nos.204 and 205 of 2020
11. On perusal of the typed set of papers, it is seen that these petitions
came to be dismissed by a common order dated 31.01.2017. It is stated in
the affidavit filed in support of I.A.Nos.298 and 299 of 2016 that the counsel
Mr.A.Mohan who was entrusted to handle the suit filed by the respondent
passed away on 14.09.2013. This fact came to the knowledge of the
petitioner only when they received summons in the execution petition.
Immediately after receiving the summons, they filed the petitions to set aside
the exparte decree passed by the Court below and condone the delay in filing
the said petition.
12. On going through the affidavit filed in support of the petitions, this
Court is of the view that though the reason stated by the petitioner to be
genuine that due to the demise of his counsel, the suit was decreed exparte
on 06.12.2012, this Court is unable to accept the same as the Judgment and
Decree was passed as early as 06.12.2012 and the counsel for the petitioner
expired only on 14.09.2013 leaving a gap of almost a year after the decree
was passed in O.S.No.3169 of 2011. There cannot be any justification merely
to state that the counsel passed away on 14.09.2013 which rendered the
revision petition without any information about the outcome of the suit.
Responsibility is also on the parties agitating before the Court to be well
informed about the proceedings that are taking place in the Court, that too
when all the proceedings are made available in the website of the Court
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C.R.P.(NPD).Nos.204 and 205 of 2020
which are uploaded everyday. It is not for the petitioner counsel to take
shelter and stating that merely because the counsel of the petitioner died, he
was not in a position to follow-up the case as the date on which the decree
was passed is much prior to the date of which the learned counsel who
appeared for the petitioner died.
13. This Court is unable to accept the contention of the petitioner and
does not find any reason to set aside the orders passed by the IV Assistant,
City Civil Court, Chennai.
14. Under these circumstances, this Court is of the view that the
petitioner has not made out any ground for setting aside the Lower Court
order and accordingly these Civil Revision Petitions are dismissed and the
petitioner is directed to pay the entire due amount to the respondent on or
before 31st May 2021. No costs. Consequently, connected miscellaneous
petition is closed.
26.02.2021
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
The IV Assistant Judge, City Civil Court, Chennai
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).Nos.204 and 205 of 2020
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).Nos.204 and 205 of 2020
V.BHAVANI SUBBAROYAN.J.,
raja
C.R.P.(NPD).Nos.204 and 205 of 2020
and
C.M.P.No.1140 of 2020
26.02.2021
https://www.mhc.tn.gov.in/judis/
