Madras High Court
M/S. Boomi Bottling Gas Co. Pvt vs M/S Operating Lease And Hire on 1 April, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
CMP No. 4532 of 2025
AND OSA SR NO. 11846 OF
2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01-04-2025
CORAM
THE HONOURABLE DR JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
CMP No. 4532 of 2025
AND OSA SR NO. 11846 OF 2023
1. M/s. Boomi Bottling Gas Co. Pvt.
Ltd
No. 648, Anna Salai, Thousand Lights,
Chennai - 600 006, presently No. 10,
Thiruvallur Salai, R.V. Nagara,
Kodungaiyur, Chennai - 600 118. and
another
2. K.V.P. Boominathan
No.648, Anna Salai, Thousand Lights,
Chennai 600 006., Presently Res. at
No.10, Thiruvalluvar Salai, R.V.Nagar,
Kodungaiyur, Chennai 600 118.
Appellant(s)
Vs
1. M/s Operating Lease and Hire
Purchase Company Limited
1
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CMP No. 4532 of 2025
AND OSA SR NO. 11846 OF
2023
Rep. by Power of Attorney A. Hema
Jhothi Vairams, 112, Thyagaraya Road,
T.Nagar, Chennai 600 017. Presently
having its Registered office at No. 10,
R Block II Floor, Prem Nagar Colony,
South Boag Road, T.Nagar, Chennai 17.
Respondent(s)
OSA SR No. 11846 of 2023
1. M/s. Boomi Bottling Gas Co. Pvt.
Ltd
No. 648, Anna Salai, Thousand Lights,
Chennai - 600 006, presently No. 10,
Thiruvallur Salai, R.V. Nagara,
Kodungaiyur, Chennai - 600 118.
2.K.V.P. Boominathan
No. 648, Anna Salai, Thousand Lights,
Chennai - 600 006, presently No. 10,
Thiruvallur Salai, R.V. Nagara,
Kodungaiyur, Chennai - 600 118.
Appellant(s)
Vs
1. M/s. Operating Lease and Hire
Purchase Company Ltd
Vairams No. 112, Thygaraya Road, 4th
Floor, T. Nagar, Chennai - 600 017.
presently R-10, 2nd Floor, Prem Nagar,
Colony, South Boag Road, T. Nagar,
2
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CMP No. 4532 of 2025
AND OSA SR NO. 11846 OF
2023
Chennai - 600 017, rep by its
Authorized Signatory, A. Hema Jothi.
Respondent(s)
CMP No. 4532 of 2025
PRAYER
To condone the delay of 4487 days in filing the Original Side Appeal as against
the Judgment and decree dated 07.07.20210 made in CS No. 607 of 2008 on the
file of Honble High Court madras.
OSA SR No. 11846 of 2023
PRAYER
CMP No. 4532 of 2025
For Appellant(s): Mr. R.Thiagarajan
For Respondent(s): Mr. V.P.Raman, For Sole
Respondent
ORDER
(Order of the Court was made by Dr.Anita Sumanth J.)
The appellants, a Company and its Managing Director, are D1 and D2 in
C.S.No.607 of 2008. The parties are referred to as per the rank in the present
appeal. The prayer in that suit was for recovery of monies due under three hire
purchase agreements.
2. Admittedly, the appellants did not contest the suit and the suit came to
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AND OSA SR NO. 11846 OF
be decreed exparte on 07.07.2010. Thereafter, an application was filed by the
appellants in A.No.1707 of 2022 seeking condonation of delay of 4245 days in
setting aside of the exparte decree. The learned single Judge allowed the same
on 05.08.2022 on condition that a sum of Rs.20.00 lakhs be deposited to the
credit of the suit, which order was complied with.
3. The plaintiff in suit/respondent in this appeal filed O.S.A.No.240 of
2022 challenging order dated 05.08.2022, which came to be allowed on
19.10.2022. The present appellants took the matter in further appeal before the
Supreme Court in SLP (Civil) Diary No.13903 of 2023, which confirmed the
order in OSA, by their judgment dated 04.08.2023.
4. It is thereafter that CMP No.4532 of 2025 has come to be filed seeking
condonation of delay of 4487 days to challenge judgment and decree dated
07.07.2010.
5. We have heard the detailed submissions of Mr.R.Thiagarajan, learned
counsel for the petitioners/appellants and Mr.V.P.Raman, learned counsel for the
respondent.
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AND OSA SR NO. 11846 OF
6. The question that arises for our consideration is as to whether sufficient
cause has been made out by the petitioners in seeking condonation of delay of
4487 days in filing the Original Side Appeal.
7. C.S.No.607 of 2008 had been instituted on 29.09.2006 and numbered
on 02.07.2008 seeking recovery of a sum of Rs.68,49,602/- with interest at the
rate of 36% per annum from date of plaint till date of realisation and for costs.
The amount, as on date, is stated to be in excess of a sum of Rs.5.00 crores. The
suit was decreed exparte on 07.07.2010.
8. Our attention is drawn to the fact that the cause list, at the time when
the appellants were set exparte, had specifically noted that D1 and D2 had
refused notice which ultimately had came to be affixed in their premises on
06.10.2009. Hence, the conduct of the appellants in the suit was one of non-
cooperation.
9. An Execution Petition came to be filed by the respondent in
E.P.No.108 of 2019 and notice was issued to the present appellants. At that
juncture, they filed an application in A.No.1707 of 2022 seeking condonation of
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AND OSA SR NO. 11846 OF
delay of 4245 days in setting aside the exparte decree dated 07.07.2010. The
learned single Judge allowed that application on 05.08.2022 upon condition that
the appellants deposit a sum of Rs.20.00 lakhs to the credit of the suit, which
condition was instantly complied with.
10. In OSA No.240 of 2022 filed by the respondent challenging the order
of the learned single Judge, the Division Bench has noted the specific defence
that the suit had been barred by limitation.
11. The Division Bench also specifically records the position that, in the
application filed seeking setting aside of the exparte decree, the appellants had
conceded that they had knowledge of being set exparte in the suit on 24.06.2010
itself. Paragraph 3 of the affidavit filed in the application seeking to set aside
the exparte decree reads as follows:
3. I have not received any notice issued in the suit. On
24.06.2010 I was informed by my counsel that a case filed by the
respondent has appeared in the list in which it has been stated that
D1 and D2 refused and affixed on 06.10.2009.'
12. This aligns with the cause list produced before us, wherein at page 60,
the suit is listed as item 6 and there is an endorsement to the effect 'D1 & D2
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AND OSA SR NO. 11846 OF
refused & affixed on 06.10.2009'. Hence, the Division Bench concluded that
there was no justification for such a substantial delay when the parties were well
aware of having been set exparte on 24.06.2010 itself. Hence, the appeal was
allowed by the Division Bench on 19.10.2022, which order has been confirmed
by the Supreme Court on 04.08.2023.
13. The present appeals are now a second innings before us, where the
appellants seek to file an appeal against the original judgment and decree. They
have relied upon the following judgments in support of their case.
1. Inder Singh V. The State of Madhya Pradesh
2. Koushik Mutually Aided Cooperative Housing Society V. Ameena
Begum and another
3. N. Mohan V. R. Madhu3
4. Bhivchandra Shankar More V. Balu Gangaram More and others
14. There is no dispute or quarrel on the legal position that the remedy of
setting aside of the exparte decree, and appellate remedy are two distinct and
different avenues available to an aggrieved party. Hence, there would be
nothing that would stand in the way of an aggrieved party who has been
1 Special Leave Petition (Civil) No.6145 of 2024 dated 21.03.2025
2 2023 SCC Online SC 1662
3 AIR 2020 Supreme Court 41
4 (2019) 6 SCC 387
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AND OSA SR NO. 11846 OF
unsuccessful in seeking condonation of delay in setting aside of exparte decree,
from making yet another attempt, albeit by showing sufficient cause for the
delay, if any, in pursuing the appellate remedy.
15. The above position has been settled in the judgment in Bhivchandra
Shankar More (supra) in the following terms:
10. A conjoint reading of Order IX Rule 13 CPC and Section
96(2) CPC indicates that the defendant who suffered an ex-parte
decree has two remedies:- (i) either to file an application
under Order IX Rule 13 CPC to set aside the ex-parte decree to
satisfy the court that summons were not duly served or those
served, he was prevented by “sufficient cause” from appearing in
the court when the suit was called for hearing; (ii) to file a regular
appeal from the original decree to the first appellate court and
challenge the ex-parte decree on merits.
11. It is to be pointed out that the scope of Order IX Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order IX Rule 13 CPC, the Court has to
see whether the summons were duly served or not or whether the
defendant was prevented by any “sufficient cause” from appearing
when the suit was called for hearing. If the Court is satisfied that
the defendant was not duly served or that he was prevented for
“sufficient cause”, the court may set aside the ex- parte decree
and restore the suit to its original position. In terms of Section
96(2) CPC, the appeal lies from an original decree passed ex-
parte. In the regular appeal filed under Section 96(2) CPC, the
appellate court has wide jurisdiction to go into the merits of the
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decree. The scope of enquiry under two provisions is entirely
different. Merely because the defendant pursued the remedy
under Order IX Rule 13 CPC, it does not prohibit the defendant
from filing the appeal if his application under Order IX Rule 13
CPC is dismissed.
12. The right of appeal under Section 96(2) CPC is a statutory
right and the defendant cannot be deprived of the statutory right of
appeal merely on the ground that the application filed by him
under Order IX Rule 13 CPC has been dismissed...............
16. However what we are to see is whether, in preferring the appeal with
delay, there has been any negligence in taking action or lack of bonafides
imputable to the party seeking condonation of delay.
17. We are of the categoric view that the appellants fail on both counts.
On the question of sufficient cause, the appellants were well aware that they had
been set exparte on 24.06.2010 itself. In such an event, there is absolutely no
justification in the elapse of 12 years in filing the application to set aside the
exparte decree.
18. Moreover, it is on the ground of delay that the proceedings concluded
adverse to the appellant in the first round. The delay as on date is far more.
Since that very reason has not appealed to the Division Bench and thereafter to
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AND OSA SR NO. 11846 OF
the Supreme Court, we see no change in circumstances to warrant a different
conclusion now.
19. The appellants had not made out a case to justify the intervening delay
of 4245 days in approaching this Court for setting aside the exparte decree and
the adverse circumstances are compounded now, when the delay stands
amplified to 4487 days.
20. Coming to the aspect of bonafides, the stand of the appellant in the
first round was set out in paragraph 3 of affidavit dated 21.03.2022, extracted at
paragraph No.11 supra. However, in affidavit dated 19.01.2023 filed now,
seeking condonation of delay of 4487 days, the appellants make a volte-face
and state at paragraph 6, that the decree passed on 07.07.2010 came to their
knowledge only when notice in E.P.No.108 of 2019 was served on them.
This is a clear mis-statement. Thus, apart from lack of diligence, the appellants
are also seen to have been taking contradictory and conflicting stands.
21. We draw support in this regard from the judgment in Esha
Bhattacharjee V. Managing Committee of Raghunathpur Nafar Academy ,
5 (2013) 12 SCC 649
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where the Supreme Court has culled the principles applicable in the context of
condonation of delay. Apart from the settled proposition that sufficient cause
should be made out by the aggrieved party, and reiterating that, normally a
liberal and justice-oriented approach should be preferred, the Court holds that
the question of bonafides is a relevant factor in deciding whether delay is liable
to be condoned.
22. In view of the discussion as above, we have no hesitation in
concluding that the appellants have not established their bonafides as in
affidavit dated 19.01.2023, they have chosen to suppress that they were aware
of the exparte decree on 24.06.2010 itself, which fact stands clearly revealed
from A.No.7107 of 2022 filed earlier.
23. For the aforesaid reasons, the Miscellaneous Petition and the Original
Side Appeal in the SR stage are dismissed. No costs.
24. At this juncture, Mr.R.Thiagarajan, learned counsel for the petitioners
requests that the the court fee paid may be refunded in terms of Section 66 of
the Tamil Nadu Court Fees and Suits Valuation Act, 1955 in the name of the
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AND OSA SR NO. 11846 OF
second appellant. The request is acceded to and the Registry is directed to do
the needful in this regard.
(ANITA SUMANTH J.)(C.KUMARAPPAN J.)
sl 01-04-2025
Index:Yes
Speaking order
Internet:Yes
Neutral Citation:Yes
To
1.M/s Operating Lease and Hire
Purchase Company Limited
Rep. by Power of Attorney A. Hema
Jhothi Vairams, 112, Thyagaraya Road,
T.Nagar, Chennai 600 017. Presently
having its Registered office at No. 10,
R Block II Floor, Prem Nagar Colony,
South Boag Road, T.Nagar, Chennai 17.
To
1.M/s. Operating Lease and Hire
Purchase Company Ltd
Vairams No. 112, Thygaraya Road, 4th
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AND OSA SR NO. 11846 OF
Floor, T. Nagar, Chennai - 600 017.
presently R-10, 2nd Floor, Prem Nagar,
Colony, South Boag Road, T. Nagar,
Chennai - 600 017, rep by its
Authorized Signatory, A. Hema Jothi.
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AND OSA SR NO. 11846 OF
ANITA SUMANTH J.
AND
C.KUMARAPPAN J.
sl
AND OSA SR NO. 11846
OF 2023
01-04-2025
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