Madras High Court
T.S.Bellan vs Indian Bank on 20 July, 2021
CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP(NPD) No.3140 of 2017
in
CMP.No.14753 of 2017
1.T.S.Bellan S/o.Salai Gowder
2.Lakshmi Ammal W/o.Linga Gowder
... Petitioners / Defendants / Petitioners
Vs.
Indian Bank, Conoor Branch
Rep. by its Branch Manager
Indian Bank
Conoor Branch
... Respondent/Plaintiff/ Respondent
PRAYER in CRP(NPD) No.3140 of 2017: Civil Revision Petition filed
under Article 227 of Constitution of India seeking to revise and set aside the
fair and decreetal order dated 04.09.2015 in I.A.No.352 / 2014 in
O.S.No.138 of 2012, on the file of the Sub-ordinate Judge of the Nilgiris at
Udhagamandalam.
For Petitioners : Mr.Surya Teja
For Respondent : Mr.Rajendran Raghavan
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CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
ORDER
(This case has been heard through video conference)
The Petitioners are defendants in O.S.No.138 of 2012, the mortgage
suit in which, the application for condonation of delay of 414 days in filing
the application to set aside the exparte decree was dismissed by the trial
Court. Against which the present revision has been filed.
2. Brief facts of the case: The mortgage suit was filed by the
respondent/plaintiff/ Bank seeking for a direction to the first defendant to
pay the plaintiff/bank a sum of Rs.6,99,076/- with subsequent interest at the
rate of 11.75% per annum with monthly rests and overdue interest @ 2%
from the date of suit to till the date of realization, to pass a mortgage degree
directing the defendants to pay the said sum of Rs.6,99,076/- with
subsequent interest at the rate of 11.75% per annum with monthly rests and
overdue interest @ 2% from the date of suit to till the date of realization
within a stipulated time that may be fixed by the Court and if the same is not
paid within the stipulated time, directing sale of the mortgaged property by
passing a final degree for sale of the schedule mentioned property and
appropriate the sale proceeds towards the suit claim and in case of proceeds
of sale are insufficient to cover the dues, to recover the same from the
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CRP(NPD) No.3140 of 2017 in
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defendants personally out of their assets. The suit was taken on file on
03.08.2012 and summons were ordered to be issued to the defendants on
05.09.2012 for hearing and summons were served on the defendants. The
defendants appeared through their counsels. However, they have not filed
their written statement and they were called absent and set ex-parte and the
suit was decreed on 26.02.2013. The defendants filed a petition in
I.A.No.352 of 2014 in O.S.No.138 of 2012 seeking to set aside the ex-parte
decree, however there was a delay of 414 days in filing the petition seeking
to setting aside the ex-parte order. The reason for the delay was that certain
documents were missing and thereby the petition to set aside the exparte
order could not be filed within the period of limitation. The trial Court upon
consideration of facts and circumstances of the case dismissed the petition
stating that no sufficient cause was shown by the petitioners and the period
was not calculated properly. Further the trial Court has also held that no
documentary proof has been filed by the petitioners. Against which the
revision has been filed.
3. Mr.Surya Teja, learned counsel appearing for the
petitioners/defendants would submit that the petitioners are poor farmers and
that they had misplaced certain documents which were necessary for
contesting the case and also to file the petition and thereby, they were unable
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CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
to file the petition to set aside the ex-parte order within time and that was
also the reason for not filing the written statement on time. He would submit
that the property has been mortgaged with the bank and the interest of the
bank is also protected. He would further submit that though the
petitioners/defendants have not given reasons with regard to each days
delay, the petitioners being farmers have shown sufficient cause in not filing
the petition within the period of limitation. He would further submit that the
valuable rights of the parties would be affected if the petition is not allowed.
Now the Government has come to the aid of the farmers and has also come
out with various schemes for one time settlement and if the exparte decree is
not set aside and if the petitioners are not permitted to negotiate with the
bank, the petitioners would be put to severe hardship. He would further
submit that the Court should not adopt a very strict approach in matters of
delay particularly when the valuable rights of parties are affected. He would
reiterate that the interest of the bank is also sufficiently protected since the
documents belonging to the petitioners are withheld by the bank.
4. Mr.Rajendran Raghavan representing the sole respondent Bank
would vehemently oppose stating that there had been a grave delay and the
petitioners/defendants have not shown any sufficient cause for condoning the
delay.
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CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
5. The learned Counsel for the petitioners/defendants would reiterate
that various schemes have been brought in by the Government to help the
farmers and that the petitioners will take aid of the available schemes to
settle the matter with the bank at the earliest or else in the event of there
being no settlement, a date may be fixed to the trial Court to complete the
trial within a specified period and the petitioners will co-operate in
completing the trial at the earliest.
6. The Honorable Apex Court in University of Delhi vs. Union of
India reported in (2020) 13 SCC 745 has held that the Court should not
adopt a very strict approach in matters of delay particularly when the
valuable rights of the parties are affected. The Honorable Apex Court after
referring to the Judgment in Collector, Anantnag Vs. Katiji, reported in 100
LW 676, has held that if the reason offered is plausible and is not shown to
be false or malafide, the Court should always lean in favour of condoning the
delay as the opposite party cannot claim a vested right in justice.
7. Applying the above said principles laid down by the Hon'ble Apex
Court, if we look at the explanation offered by the petitioners/defendants
for the delay, this Court can conclude that the delay has been satisfactorily
explained.
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CRP(NPD) No.3140 of 2017 in
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8. The petitioners are poor farmers and that their documents have been
withheld by the bank and the interest of the bank is also protected. Therefore,
this Court is of the opinion that the petitioners can be given a chance to
contest the suit on imposition of cost and terms.
9. Accordingly, the Civil Revision Petition is allowed. The order dated
04.09.2015 passed in I.A.No.352 of 2014 in O.S.No.138 of 2012, on the file
of the Sub-Ordinate Judge of the Nilgiris at Udhagamandalam, is set aside
and I.A.No.352 of 2014 stands allowed on condition that the
petitioners/defendants to pay an amount of Rs.10,000/- as cost to the
respondent/Bank within a period of two weeks from the date of receipt of
copy of this order.
10. Since the suit is of the year 2012, the trial Court shall endeavour
to dispose of the trial in O.S.No.138 of 2012 as expeditiously as possible
preferably within a period of six months from the date of receipt of copy of
this order.
11. With the above observations, this Civil Revision Petition is
allowed. Consequently, connected Miscellaneous Petition is closed.
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ksa-2
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CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
To
The Sub-ordinate Judge of the Nilgiris,
Udhagamandalam.
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.3140 of 2017 in
CMP.No.14753 of 2017
A.D.JAGADISH CHANDIRA,J.
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CRP(NPD) No.3140 of 2017
in
CMP.No.14753 of 2017
20.07.2021
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https://www.mhc.tn.gov.in/judis/
