Madras High Court
Viprah Technologies Limited vs Manipal Finance Corporation Ltd on 28 June, 2023
C.R.P.SR.No.1890 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28/6/2023
CORAM
THE HONOURABLE Dr.JUSTICE D.NAGARJUN
Civil Revision Petition SR.No.1890 of 2023
and
C.M.P.No.4436 of 2023
1. Viprah Technologies Limited
rep. By its Managing Director
Mr.C.K.Ananth
2. C.K.Ananth
3. Sujatha Ananth ... Petitioners
Vs
Manipal Finance Corporation Ltd
rep. By its Senior Manager
Mr.N.Vasudevan ... Respondent
Prayer: Petition filed under section 115 of the Code of Civil Procedure
against the fair and decreetal order dated 27/4/2019 passed in E.P.No.73
of 2005 in A.P.No.85 of 1999 on the file of the Principal District Judge,
Coimbatore.
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1/8
C.R.P.SR.No.1890 of 2023
For Petitioners ... Mr.Antony R.Julian
M.Karnikaa
For respondent ... Mr.R.Kuberan
for M/s. Rank Associates
-----
ORDER
This Civil Revision Petition is filed challenging the order passed by
the learned Execution Court in allowing the E.P.No.73 of 2005 in
A.P.No.85 of 1999 on the file of the Principal District Judge,
Coimbatore.
2. The facts of the case in brief are as follows:-
The petitioner No.1 is a Limited Company in which the petitioner
Nos.2 and 3 are the Directors. The first petitioner Company and
respondent were entered into hire purchase agreement, dated 7/2/1997,
agreeing to pay a sum of Rs.63,778/- p.m., for a period of 36 months to
the respondent. Dispute arose in respect of repayment by the petitioners,
and the same was referred to the learned Arbitrator. Ultimately, arbitral
award was passed not only against the first petitioner Company, but also
against the second and third petitioners, holding that both of them have
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C.R.P.SR.No.1890 of 2023
stood as personal guarantors under hire purchase agreement. Execution
Petition was filed in pursuance of the said arbitral award. Residential
property and personal properties of second and third petitioners were
attached in E.P.No.73 of 2005, on the file of the learned II Additional
Subordinate Judge, Coimbatore, in the year 2003.
3. The matter was subsequently referred to both for Industrial and
Financial Reconstruction, New Delhi and the Board. The Board, vide its
proceeding No.75/2006, declared that the first petitioner Company as a
Sick Industry. It is mentioned that on account of pendency of BIFR
proceedings, the execution proceedings should not have been concluded.
4. Application was filed by the petitioners, on the file of the
Principal District Court, Coimbatore, to keep the proceedings in
abeyance, under Section 22 of the SICA Act. The said application was
dismissed. Aggrieved by the same, the petitioners have preferred
C.R.P.No.2903 of 2007 and the same was allowed by setting aside the
proceedings in E.A.No.33 of 2007 in E.P.No.73 of 2005.
5. The Sick Industry Act, 1985 was repealed in the year 2016 on
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C.R.P.SR.No.1890 of 2023
which the respondent has revived E.P.No.73 of 2005 and proceeded
against the personal properties of the petitioners. It is also the case of the
petitioners that the respondent/decree holder has initiated against the
guarantors, though initial liability extends to the Company.
6. It is submitted by the petitioners that reviving of E.P.No.73 of
2005 by way of an order, dated 27/4/2019, is irregular and thereby,
required to be set aside. It is submitted that the counsel has not
informed him the order passed by the Execution Court, on 27/4/2019. In
the meanwhile, the respondent has filed E.A.No.4 of 2022, for amending
the schedule of property and he has filed a detailed counter, stating that
E.P is not maintainable. The said E.A was allowed and later, they were
advised to prefer a revision petition. While preparing for the revision,
the petitioners were came to know about the order, dated 27/4/2019,
passed in E.P.No.73 of 2005 and thereby, immediately, they have filed
the Civil Revision Petition before this Court.
7. Heard Mr.Antony R.Julian, learned counsel for the petitioners and
Mr.R.Kuberan, learned counsel for the respondent.
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C.R.P.SR.No.1890 of 2023
8. It is submitted that delay of 1236 days occurred in filing of the
revision before this Court is only on account of not informing about the
order passed in the execution petition by the counsel and therefore,
sought for condoning the delay.
9. The respondent who has filed a detailed counter has submitted
that the petitioners/judgment debtors have not given any valid reason for
condoning the delay of huge number of days. Therefore, sought for
dismissal.
10. The point that falls under consideration before this Court is
“Whether the petitioners were having
justifiable reasons in not approaching this Court
and filing the revision in E.P.No.73 of 2005,
challenging the order, dated 27/4/2019?”
11. It is not the case of the petitioners/judgment debtors that order,
dated 27/4/2009 was passed behind their back. According to their own
affidavit, the petitioners have engaged a counsel and have been following
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C.R.P.SR.No.1890 of 2023
the proceedings and defending the execution proceedings. When an
application is filed by the respondent, seeking amendment of the
schedule, the petitioners through their Advocate have filed a detailed
counter and opposed the same. Therefore, the respondent has been
keenly following the proceedings and trying to intervene the
proceedings, as and when passed by the Execution Court. The further
conduct of the respondent also demonstrate the same. Aggrieved by the
order, permitting the respondent/judgment debtor to amend the schedule
of property, the petitioners have decided to prefer a revision. They have
approached the counsel for instructing them to file a revision. The
petitioners stated to have informed by their counsel that unless they
challenge the order, dated 27/4/2019, they cannot obviously challenge
the order passed in E.A., through which the amendment of the schedule
was amended. Therefore, the petitioners were very much vigilant as to
the order passed by the Execution Court and were also conscious and
specific as to which orders have to be challenged and which are not.
12. The petitioners having successfully defending the E.P., through
their counsel have mentioned in the affidavit that while seeking to
condone the delay, their counsel has not informed about the proceeding,
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C.R.P.SR.No.1890 of 2023
dated 27/4/2019. When the counsel has informed about the various
stages of the execution petition, it is not convincing that the petitioners
counsel has not informed about the order passed by the trial Court, on
27/4/2019 and their own statement that when they approached the
counsel for filing of revision, aggrieved by the order passed in respect of
the amendment of schedule, their counsel has advised that unless they
challenge the order, dated 27/4/2019, they cannot challenge the
subsequent order, that means, the petitioners are aware of the order,
dated 27/4/2019 and decided not to challenge.
13. In case, if there were no orders of amendment of schedule, the
petitioners would not have challenged the orders passed on 27/4/2019.
Therefore, this aspect would go to show that the petitioners were aware
of the Proceeding, dated 27/4/2019 and deliberately kept quite. The
petitioners have also not filed affidavit of their counsel to the effect that
he could not inform about the proceeding, dated 27/4/2019 to the
petitioners. In view of the above, the petitioners have failed to convince
this Court that delay occurred on account of not informing their counsel
about the order passed on 27/4/2019.
Dr.D.NAGARJUN,J
https://www.mhc.tn.gov.in/judis
C.R.P.SR.No.1890 of 2023
mvs.
14. Accordingly, this Civil Revision Petition is rejected and
C.M.P.No.4436 of 2023 is dismissed. No costs.
28/6/2023
Index :yes/no
Neutral Citation: Yes/No
mvs.
To
The Principal District Judge, Coimbatore.
Civil Revision Petition SR.No.1890 of 2023
and
C.M.P.No.4436 of 2023
https://www.mhc.tn.gov.in/judis
