M/S. Sri Rama Enterprises vs M/S. S.V. Distilleries Pvt. Ltd
2022 Latest Caselaw 4974 Tel

             HON'BLE Smt. JUSTICE P.SREE SUDHA

                     C.R.P.No.2113 of 2021

                              ORDER

1. This revision is directed against the order dated

09.11.2021 passed in I.A.No.2987 of 2021 in O.S.No.463 of

2017 on the file of the learned Chief Judge, City Civil Court,

Hyderabad, whereby the application filed under Section 5 of the

Limitation Act, 1963 to condone the delay of 1154 days in filing

the petition to set aside the ex parte decree dated 08.02.2018 is

dismissed.

2. The petitioner in this revision is the respondent-plaintiff

and the respondent is the petitioner-defendant.

3. The trial Court after considering the arguments advanced

by both the counsel and also citations filed on behalf of both

sides, allowed the application on costs of Rs.10,000/- to be paid

on or before 15.11.2021 to the plaintiff. Aggrieved by the said

order the plaintiff preferred this revision.

4. Heard the learned counsel appearing for the petitioner-

plaintiff and the learned counsel appearing for the respondent-

defendant.

5. M/s.Sri Rama Enterprises-plaintiff filed suit against M/s.

S.V.Distilleries Private Limited-defendant seeking recovery of an

amount of Rs.45,14,987/-. Summons was served to the

defendant and his counsel filed his vakalat on 01.08.2017 and

the matter was adjourned for filing of written statement. Even

after granting several adjournments, the defendant failed to file

its written statement, the trial Court forfeited its right to file

written statement on 20.11.2017. P.W.1 was examined on

26.04.2018 and the suit was decreed on 27.04.2018.

6. The plaintiff informed the defendant about the decree and

requested for payment of the amount. Though the defendant

promised to pay the amount, it could not pay the same and as

such the plaintiff got the decree transferred to the Court of

Principal District Judge, Bidar, Karnataka, and filed E.P.No.125

of 2019 in which notice was issued to the defendant and the

same was served to it in the month of August, 2019 but the

defendant did not choose to contest the E.P. and thus it was set

ex parte and steps were ordered on 23.01.2020. Later E.P. was

converted as Commercial Execution Petition on establishment of

Commercial Court and new number was allotted on 13.02.2020

as Com.E.P.No.374 of 2020. The defendant-judgment debtor

remained ex parte and steps were ordered for attachment of the

schedule property. In view of pandemic, the matter was

adjourned for issuance of warrant for attachment of property of

the judgment debtor. The defendant appeared before the

Executing Court on 23.04.2021 and filed an application to stay

the execution, which was allowed on 20.07.2021 subject to the

condition of depositing 50% of the decretal amount. In the

meantime, the defendant filed I.A.No.2987 of 2021 before the

trial Court on 25.06.2021 to condone the delay of 1154 days in

filing application viz. I.A.No.2988 of 2021 to set aside the

ex parte decree dated 27.04.2018. The defendant also filed

W.P.No.201492 of 2021 before the High Court of Karnataka and

in an order dated 12.08.2021 stay was granted with a direction

to deposit 25% of the decretal amount within two weeks and the

defendant has not deposited any amount till today. As the

plaintiff contested the I.A., one R.V.Ravi Kumar, Managing

Director of the defendant company filed evidence affidavit on

01.10.2021 in lieu of chief-examination and he was cross-

examined on the same day and his admissions in the cross-

examination are detailed in the evidence affidavit from points (i)

to (xxxii) and thus the plaintiff requested the Court to set aside

the order of the trial Court.

7. The plaintiff was dealing with business of selling coal with

large quantity by purchasing from M/s.Singareni Collories

Company Limited, Khamma District. The defendant purchased

coal from the plaintiff and was paying amount regularly. The

defendant is due to pay to the plaintiff an amount of

Rs.26,19,179.12 paise towards the principal amount with the

last purchase on 09.06.2014. No payment was made by it in

spite of repeated demands. The defendant acknowledged the

debt of the plaintiff on 18.06.2014 and also promised to pay the

same by 20.05.2017, but it failed to do so and as such the

plaintiff issued legal notice on 29.05.2017, which was served to

the defendant on 01.06.2017, and when the defendant failed to

pay the amount the plaintiff filed the present suit for recovery of

the amount.

8. The defendant in the suit could not file the written

statement in spite of granting several adjournments and as

such it was set ex parte and a decree was passed by an order

dated 27.04.2018. Only after filing of Execution Petition in the

month of September, 2021 the defendant filed applications viz.

I.A.Nos.2987 and 2988 of 2021 to condone the delay of 1154

days and to set aside the ex parte decree dated 27.04.2018.

R.V.Ravi Kumar is the Managing Director of the defendant

company stated that the defendant company involved in a scam

of Rs.33,00,00,000/- and several cases were pending against it

and furnished the details of fifteen cases and he is residing at

Pondicherry suffering from anxiety, hypertension and other old

age ailments. He has no office at Hyderabad and as such he

could not pursue the suit and only when he received summons,

engaged an Advocate but his counsel did not inform him about

filing of the written statement and thus he did not file the

written statement. Therefore an ex parte decree was passed on

27.04.2018. When he received notices in Com.E.P.No.374 of

2020 he came to know about the ex prate decree and therefore

he filed an application for staying of the proceedings, which was

allowed subject to depositing 50% of the decretal amount. He

preferred the writ petition in which he was directed to deposit

25% of the decretal amount. He also submitted that he got good

case to succeed and 469 days delay was excluded as per the

orders of the Supreme Court during the pandemic and thus

requested the Court to condone the delay of 1154 days from

27.04.2018 to 25.06.2021.

9. A common counter was filed by the plaintiff by stating

that this application is filed only to postpone the payment of

decretal amount. He further stated that no sufficient reasons

were assigned by the defendant for condoning the delay and no

supporting documents were filed and moreover the defendant

indebted to several persons. Bankers filed O.A.No.352 of 2016

against the defendant in Debts Recovery Tribunal, Hyderabad,

after passing of the decree in favour of the plaintiff. Though the

defendant promised to pay the amount, he could not pay the

decretal amount and made the plaintiff to wait for a long time

and then taken steps for transfer of the decree. The plaintiff

filed E.P.No.125 of 2019 on 13.06.2019 in which notice was

ordered on 19.06.2019 and it was served upon the defendant

and again he failed to appear before the Court and therefore the

defendant was set ex parte on 29.11.2019. Even as on

29.11.2019 he is having knowledge of the ex parte decree dated

27.04.2018 but the defendant came up with the application on

20.07.2021. The defendant has not complied with the orders of

the trial Court regarding deposit of 50% of the decretal amount

or the order of the Karnataka High Court for deposing 25% of

the decretal amount on or before 26.08.2021. In fact, the

counsel appearing for the defendant filed vakalat on

01.08.2017, matter is posted for filing written statement on

01.09.2017 and then extended till 22.09.2017 and again on

06.11.2017. As the written statement was not filed on that date

the matter is adjourned to 20.11.2017 as a last chance and on

that day the Court waited till 4:00 PM and his right of filing

written statement was forfeited and posted the matter to

18.11.2017 for plaintiff's evidence. P.W.1 was examined on

26.04.2018 and on 27.04.2018 the suit was decreed. The

plaintiff further stated that the defendant is a private limited

company and as such the deponent cannot claim that he is the

only person looking after the business. Warrant of attachment

was issued on 06.04.2021 and as the counsel appearing for the

defendant did not represent the matter properly before the trial

Court, the only remedy available to him is to file a complaint

against his counsel but he has not done so. Therefore, non-

appearance of the defendant is wilful and deliberate. It was also

stated that the limitation seeking to set aside the ex parte

decree expired on 09.03.2018 and as such the direction of the

Supreme Court in Suo Motu W.P.(Civil).No.3/2020 is not

applicable to the facts of the case and thus requested the Court

to dismiss the application.

10. The trial Court after considering the arguments advanced

by both the counsel, allowed the same on costs.

11. The defendant purchased the coal from the plaintiff but

did not pay the amount. The defendant would submit that

during the pendency of the proceedings, the quality of the coal

supplied by the plaintiff is not with good quality and as such he

is having a very good case to succeed. But this fact was never

stated by the defendant prior to filing of applications for

condoning the delay and to set aside the ex parte decree.

Admittedly, the defendant failed to file the written statement

and he has not filed any case against the plaintiff stating that

he is not entitled for the amount as he supplied poor quality of

the coal. For the first time the defendant made this allegation

only in the year 2021.

12. Further, suit summons were served to the defendant and

he engaged the counsel but could not file the written statement

in spite of granting several adjournments. Though the defendant

assigned several reasons, they cannot be accepted as it is his

duty to pursue the litigation with due diligence. The defendant

cannot take advantage of his negligence at a later point of time.

The plaintiff in the suit submitted that even after passing of the

ex parte decree he informed about the same to the defendant

upon which the defendant promised to pay the amount but

could not pay the amount and as such he took steps for transfer

of the decree. After filing of the E.P. summons were served upon

the defendant. The defendant was set ex parte and as such his

contention that he did not know about the passing of the

ex parte decree till the service of summons in Com.E.P.No.374

of 2020 cannot be accepted. In fact, the defendant made

appearance in the E.P. and asked for stay and it was granted

subject to deposit of 50% of the decretal amount but he did not

deposit the same and approached the High Court by way of

filing a writ petition, which was allowed with a condition to pay

25% of the decretal amount and even then the defendant has

not deposited a single pie so far. Later the defendant filed the

about two applications for condoning the delay and also to set

aside the ex parte decree. The argument of the learned counsel

for the defendant is that 469 days is exempted in view of the

judgment of the Supreme Court cannot be accepted. As the

plaintiff in the suit stated that the limitation to file the

application to set aside the ex parte decree expired on

09.03.2018 much prior to the passing of the order by the

Hon'ble Supreme Court. The reasons stated by the defendant for

abnormal delay of more than three years is not explained by

him properly and his conduct clearly goes to show that he

intended to avoid payment and wilfully kept quiet during the

pendency of the suit and even after filing of the E.P. The

defendant made his best efforts only to protract the litigation

and to drag on the proceedings. The reasons explained by the

defendant that he was suffering from old age aliments and

involved in a scam are not at all tenable. The defendant mainly

contended that his counsel did not file written statement, but he

has not initiated any action against the previous counsel to

show his bona fides.

13. In the light of the foregoing discussion, this Court finds

that the trial Court erred in allowing the application without

appreciating the facts properly and is liable to be set aside.

14. In the result, the revision petition is allowed and the order

under challenge is set aside.

15. Miscellaneous Petitions, if any, pending in this revision

shall stand dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

10th OCTOBER, 2022.

PGS