Madras High Court
Trade Line vs Aban Infrastructure Pvt Ltd on 18 September, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
O.S.A.No.99 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.09.2024
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
O.S.A.No.99 of 2022,
CMP Nos.7012 & 7013 of 2022
and 1527 & 1530 of 2023
1. Trade Line
A firm of Partnership, rep.by its Partner,
Mr.Palayam Prabhakar Prashanth,
No.47A/19A, Venus Colony Second Street,
Alwarpet, Chennai 600 018.
2. Palayam Prabhaar Prashanth
3. Githanjali Prashanth
4. Varun Prashanth ... Appellants
-vs-
Aban Infrastructure Pvt Ltd
(Previously Aban Infrastructure Pvt., Ltd.,)
Rep. by its Authorised Signatory,
N.V.Purandiran, Office at Janpriya Crest,
No.113, Pantheon Road, Egmore,
Chennai 600 008. ... Respondent
PRAYER : Appeal under Order XXXVI Rule 2 of Original Side Rules
against the order dated 08.12.2021 passed in A.No.4233 of 2021 in
C.S.No.197 of 2015 on the file of original side of this Court.
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Page 1 of 10
O.S.A.No.99 of 2022
For Appellants : Mr.P.S.Raman
Senior Counsel
for M/s.Ojas Law Firm
For Respondent : Mr.V.G.Suresh Kumar
*****
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J)
This appeal is directed against the order of the learned Single
Judge passed in A.No.4233 of 2021 in C.S.No.197 of 2015 dated
08.12.2021, dismissing the application to condone the delay in filing the
application to set aside the ex parte decree.
2. Brief facts that are necessary for disposal of this appeal are
as follows:
The respondent herein filed a suit for recovery of a sum of
Rs.1.15 crore with interest. The suit came to be listed and the
appellants/defendants were set ex parte, as they did not file their written
statement. Thereafter, an ex parte decree was passed on 13.07.2018. It is
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admitted that the respondent/plaintiff filed an execution petition in
E.P.No.51 of 2019 for arrest and detention of the judgment debtors and
E.P.No.52 of 2019 for attachment and sale of the assets belonging to the
first defendant firm and its partners. However, an application to set aside
the ex parte decree was filed along with an application in A.No.4233 of
2021 to condone the delay of 1175 days in filing the application to set
aside the ex parte decree.
3. By order dated 08.12.2021, the learned Single Judge
observed though the appellants/defendants were very well aware of the
ex parte decree in the suit and the execution petition, they have not given
proper reasons explaining the cause for the delay and therefore, there is
no rhyme or reason to condone the delay. The learned Single Judge also
recorded a finding that the long delay is a strategy of the appellants to
keep the decree holder at bay. Against the said order of the learned
Single Judge, the present appeal is filed. This Court, while entertaining
the appeal, granted interim stay on conditions.
4. The learned counsel for the respondent/plaintiff states that
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the appellants/defendants have not complied with the conditions imposed
by this Court while granting interim order and therefore, the conduct of
the appellants should also be taken into account while considering the
merits of the appeal.
5. Mr.P.S.Raman, learned senior counsel appearing for the
appellants, submits that the appellants have paid a substantial amount
during the pendency of this appeal. As against the sum of Rs.1.15 crore,
which is the principal amount for which the suit for recovery was filed,
the learned senior counsel pointed out that a sum of Rs.3,51,31,908/- is
paid by the appellants towards the suit claim. This fact is not seriously
disputed. The bona fides of the appellants cannot be doubted at present
when the appellants have now paid a substantial amount to avoid the sale
of the assets in the execution proceedings.
6. Having regard to the reasons stated in the order while
dismissing the application for condoning the delay, this Court is unable
to find any justification in the observation made by the learned Single
Judge that the application filed to condone the delay is a strategy to keep
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the decree holder at bay. No doubt, the appellants have not given
elaborate reasons to explain each day's delay and that the delay is also
inordinate. However, on a perusal of the reasons stated in the affidavit, it
is seen that the appellants appeared to be in financial crunch and were
mentally unstable due to the serious health issues of the third appellant
who had undergone a surgery to cure the tuberculosis in her spine.
7. Though the delay is inordinate and sincere and honest efforts
were not taken in explaining huge delay, this Court finds that the conduct
of the appellants in depositing substantial amount of Rs.3.51 crore during
the pendency of this appeal shows the real intention of the appellants to
settle the dues of the respondent.
8. The Hon'ble Supreme Court and this Court have repeatedly
held that the Court should normally, while considering the condonation
application, have a liberal approach. Even though there is no rigid rule,
there must be reasonable attempt by the applicants in explaining the
delay and the bona fides of the applicants should also be seen. Having
regard to the nature of dispute and the relief prayed for in the suit, we are
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convinced that the subsequent payment of a sum of Rs.3,51,31,908/-
during the pendency of the appeal shows the real concern of the
appellants to keep themselves alive in this litigation and to get a decision
on merits. The appellants' effort in this lis is after all to get an
opportunity to contest the suit on merits. The appellants have now
deposited substantial amount and the interest rate claimed on the
principal is 23%.
9. Law of limitation is founded on public policy. When
application is filed to delay execution and application lacks bonafide,
delay need not be excused. Section 5 of the Limitation Act gives the
Court a discretion which has to be exercised in the way in which judicial
power and discretion ought to be exercised. The discretion should be to
advance substantial justice. This Court is unable to hold that there is
inaction to the extent to suggest that there is abandonment. The Hon'ble
Supreme Court has always indicated liberal attitude by Courts to enable
the Courts to do substantial justice by deciding the cases on merits.
When delay is in filing a petition to set aside an exparte decree, the Court
may show a different attitude to pave way for a decision on merits.
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When substantial justice and technical consideration are pitted against
each other, cause of substantial justice deserves to be preferred and the
other side cannot claim to have vested right in injustice being done,
especially in this case when this Court has held that the delay is not
deliberate or on account of culpable negligence or on account of
malafides.
10. In view of the general principles indicated by the Hon'ble
Supreme Court, this Court finds it appropriate to give one fair
opportunity to the appellants to defend the suit on merits, particularly,
having regard to the fact that the appellants/defendants have already paid
a substantial amount to the credit of the suit proceedings during the
pendency of this writ appeal and it also protects the interest of the
respondent to a greater extent. However, the respondent is entitled to
costs of Rs.25,000/-.
11. In such circumstances, the original side appeal is allowed
and the order of the learned Single Judge dated 08.12.2021 passed in
A.No.4233 of 2021 in C.S.No.197 of 2015 is set aside on condition that
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the appellants shall pay a sum of Rs.25,000/- (Rupees twenty five
thousand only) to the learned counsel for the respondent within a period
of two weeks from the date of receipt of a copy of this order. The amount
may be paid by cash or DD drawn in favour of respondent. In case, the
amount is not accepted by the counsel for reasons, the same shall be
deposited to the credit of suit without further delay. The appellants shall
file their written statement within a period of two weeks from the date of
receipt of a copy of this order. Upon proof of payment and filing written
statement, the application filed by the appellants to set aside ex parte
decree may also be allowed to save time.
12. Since the suit is filed in the year 2015, the learned trial
Judge is directed to give preference to list the suit and dispose of the
same as early as possible and preferably within a period of six months
from the date of commencement of the trial. Consequently, connected
miscellaneous petitions are closed.
(S.S.S.R., J.) (K.R.S., J.)
18.09.2024
Index : Yes/No
NC : Yes/No
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sra
To
The Sub Assistant Registrar,
Original Side, Madras High Court,
Chennai.
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S.S.SUNDAR, J.
and
K.RAJASEKAR, J.
(sra)
18.09.2024
https://www.mhc.tn.gov.in/judis
