Madras High Court
S.Viswanathan (Deceased) vs Indian Bank on 6 June, 2022
C.R.P.(NPD)No.36 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
C.R.P.(NPD)No.36 of 2016
and C.M.P.No.214 of 2016
S.Vivekanandan
S.Viswanathan (Deceased)
(cause title accepted vide order of Court
dated 21.12.2015 made in M.P.No.1/15
in CRP.SR.No.91970/15)
...Petitioner
Versus
Indian Bank, Coonoor Branch,
Rep. By its Branch Manager,
Coonoor, Udhagamandalam.
...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to revise and set aside the order dated 14.08.2015 in
I.A.No.407 of 2014 in O.S.No.28 of 2012, on the file of the Subordinate Judge
of the Nilgiris at Udhagamandalam.
For Petitioner :M/s.Srinath Sridevan
For Respondent :M/s.Rita Chadrasekar
for Aiyar and Dolia
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C.R.P.(NPD)No.36 of 2016
O R D E R
The Civil Revision Petition is filed against the dismissal of
petition to condone the delay of 425 days in seeking to set aside the ex-parte
decree dated 22.02.2013 passed in O.S.No.28 of 2012 on the file of
Subordinate Court, Udhagamandalam. The respondent Bank filed a mortgage
suit for recovery of mortgage debt of Rs.6,31,948/-. When the suit was in the
stage of cross examination of PW.1, the revision petitioner/defendant was set
ex-parte owing to his failure to cross examine the witness. Subsequently, the
ex-parte preliminary decree was passed on 22.02.2013 directing the revision
petitioner/defendant to pay a sum of Rs.6,31,948/- with interest at the rate of
12% per annum on the said sum from the date of suit to the date of decree. The
future interest was directed to be paid at 6% from the date of decree to the date
of realization.
2. The revision petitioner filed a petition to set aside the ex-parte
decree along with petition to condone the delay of 425 days in seeking to set
aside the ex-parte decree. The revision petitioner in his affidavit filed in
support of condone delay petition submitted that he could not file petition to set
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C.R.P.(NPD)No.36 of 2016
aside the ex-parte decree within the limitation period as certain documents were
misplaced and the delay in filing the set aside application is neither willful nor
wanton, but due to the bonafide reason stated therein.
3. The respondents filed a counter denying the averments found
in the affidavit of the revision petition and submitted that inspite of several
opportunities, the revision petitioner failed to cross examine of PW.1 and hence
it resulted in ex-parte decree.
4. The trial Court after considering the rival submissions, came to
the conclusion that the revision petitioner has not explained the delay
satisfactorily and hence dismissed the application. Challenging the same, the
above Civil Revision Petition is filed.
5. The learned counsel for the revision petitioner submitted that he
was prevented from filing a petition to set aside the ex-parte decree within time
as certain material papers available with him were misplaced. He also
submitted that he obtained loan from the respondent bank for engaging in
floriculture in Nilgiris District of Tamil Nadu. He also submitted that due to
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C.R.P.(NPD)No.36 of 2016
natural calamity, the floriculture farm fields were destroyed and hence, he could
not continue with the floriculture and consequently he was prevented from
repaying the loan amount. It was also submitted that the Nilgiris District
Floriculture Small Farmers Association submitted a representation to the
District Collector and also Government of Tamil Nadu, highlighting the
difficulties faced by them due to natural calamities and disturbances in their
farming activities. He also referred to the proceedings of the District Collector
included in page No.164 of the additional typed set of papers, wherein, it was
recommended that 50% of the actual loan amount could be received by bank as
one time settlement and the remaining amount and interest etc., could be
waived. It was further submitted by the revision petitioner that the farmers of
Nilgiris District engaged in floriculture are in very difficult situation. In view
of the natural calamity which destroyed their fields, it was impossible for them
to pay the entire loan amount.
6. The learned counsel for the respondent bank submitted that the
petitioner/defendant has not explained the delay by giving sufficient reasons.
He also supported the order passed by the trial Court by taking this Court to the
order impugned in revision.
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C.R.P.(NPD)No.36 of 2016
7. It is settled law that the Court shall take a liberal approach in
considering the petition to condone delay. The procedural law is only a hand
maid of the substantive law and when there is a conflict between the procedural
law and substantive law, the former must give way to the latter. The suit is for
recovery of money based on a mortgage created over the immovable property.
Hence, the money advanced by the bank is well secured. Therefore by giving
an opportunity to the revision petitioner/defendant to contest the suit on merit
no prejudice will be caused to the respondent/plaintiff bank. The proceedings
of the District Collector referred to above makes it clear that the persons
engaged in floriculture in Nilgiris District of Tamil Nadu are affected by
natural calamity and consequently they are in a difficult financial position.
This Court is not expressing any opinion on the recommendations for waiver of
portion of the amount or one time settlement. The said proceedings is taken
into consideration as a piece of material to come to a conclusion that farmers
of floriculture were facing a difficult situation at that point of time. Therefore,
this Court feels that the revision petitioner should be given an opportunity to
contest the suit on merit by putting forth his defence.
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C.R.P.(NPD)No.36 of 2016
8. The discretion of the Courts while exercising the jurisdiction
under Section 5 of the Limitation Act had been very well explained by the
Apex Court in a judgment in the case of N.Balakrishnan Vs.
M.Krishnamurthy reported in [(1998) 7 SCC 123], wherein the Hon'ble Apex
Court has observed that while exercising the discretion under Section 5 of the
Limitation Act, 1963, the Courts are guided by following principles:
“10. The primary function of a court is to adjudicate
the dispute between the parties and to advance substantial
justice. The time-limit fixed for approaching the Court in
different situations is not because on the expiry of such time a
bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the
rights of parties. They are meant to see that parties do not
resort to dilatory tactics, but seek their remedy promptly. The
object of providing a legal remedy is to repair the damage
caused by reason of legal injury. The law of limitation fixes a
lifespan for such legal remedy for the redress of the legal
injury so suffered. Time is precious and wasted time would
never revisit. During the efflux of time, newer causes would
sprout up necessitating newer persons to seek legal remedy by
approaching the courts. So a lifespan must be fixed for each
remedy. Unending period for launching the remedy may lead
to unending uncertainly and consequential anarchy. The law
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C.R.P.(NPD)No.36 of 2016
of limitation is thus founder on public policy. It is enshrined in
the maxim interest reipublicae up up sit finis litium (it is for
the general welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the rights of the parties.
They are meant to see that parties do not resort to dilatory
tactics but seek their remedy promptly. The idea is that every
legal remedy must be kept alive for a legislatively fixed period
of time.
12. A court knows that refusal to condone delay would
result foreclosing a suitor from putting forth his cause. There
is no presumption that delay in approaching the court is
always deliberate. This Court has held that the words
"sufficient cause" under Section 5 of the Limitation Act should
receive a liberal construction so as to advance substantial
justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR
1969 SC 575] and State of West Bengal Vs. The Administrator,
Howrah Municipality [AIR 1972 SC 749].
13. It must be remembered that in every case of delay
there can be some lapse on the part of the litigant concerned.
That alone is not enough to turn down his plea and to shut the
door against him. If the explanation does not smack of mala
fides or it is not put forth as part of a dilatory strategy the
court must show utmost consideration to the suitor. But when
there is reasonable ground to think that the delay was
occasioned by the party deliberately to gain time then the
court should lean against acceptance of the explanation. While
condoning delay the Court should not forget the opposite party
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C.R.P.(NPD)No.36 of 2016
altogether. It must be borne in mind that he is a looser and he
too would have incurred quiet a large litigation expenses. It
would be a salutary guideline that when courts condone the
delay due to laches on the part of the applicant the court shall
compensate the opposite party for his loss.”
9. Therefore, it is clear when the delay is not due to the malafide
intention of the petitioner, acceptance of the reasons adduced by him is the
Rule and refusal is an exception. Applying the principles enunciated in the
above referred decisions, I am inclined to take liberal approach in considering
the petition filed by the revision petitioner to condone the delay in seeking to
set aside the ex-parte decree.
10. Although the money advanced by the respondent is secured by
mortgage created over an immovable property, taking in to consideration the
length of delay in filing a petition to set aside the ex-parte decree, this Court
feels it appropriate to direct the revision petitioner to deposit a portion of the
decretal amount before the trial court.
11. Considering the fact that the suit is for recovery of money
based on mortgage and the interest of the respondent bank is secured by a
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C.R.P.(NPD)No.36 of 2016
creation of mortgage on an immovable property, an opportunity shall be given
to the revision petitioner/defendant to fight the case on merit. Therefore, this
Court proposes to put the revision petitioner on terms.
12. Accordingly, this Civil Revision Petition is allowed by setting
aside the fair and decretal order passed by the learned Subordinate Court,
Udagamandalam, in I.A.No.407 of 2014, on condition that the petitioner shall
deposit a sum of Rs.1,00,000/- (Rupees one lakh only) to the credit of
O.S.No.28 of 2012, on the file of the Subordinate Court, Udhagamandalam,
within a period of six weeks from the date of receipt of copy of this order and
on such deposit, the learned Subordinate Judge, Udagamandalam is directed to
take up the petition to set aside the exparte decree and dispose of the same
within a period of four weeks thereafter. In case, the exparte decree is set
aside, the court below is directed to dispose of the suit within a period of six
months from the date of setting aside the exparte decree. Consequently,
connected miscellaneous petition is closed.
06.06.2022
ub
Index: Yes/ No
Speaking Order / Non-Speaking Order
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C.R.P.(NPD)No.36 of 2016
S.SOUNTHAR, J.
ub
To
The Subordinate Judge of the Nilgiris,
Udhagamandalam.
C.R.P.(NPD)No.36 of 2016
06.06.2022
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