M/S. Anjana Enterprises vs M/S. S.V. Distilleries Pvt. Ltd
2022 Latest Caselaw 4975 Tel

            HON'BLE Smt. JUSTICE P.SREE SUDHA

                     C.R.P.No.2030 of 2021

                             ORDER

1. This revision is directed against the order dated

09.11.2021 passed in I.A.No.2989 of 2021 in O.S.No.464 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 1232 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 herein is the petitioner-defendant. For

the sake of convenience, the parties hereinafter shall be

referred to as they were arrayed in the suit.

3. The trial Court after considering the arguments

advanced by both the counsel and also the case law cited

before it 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.Anjana Enterprises-plaintiff filed suit against

M/s.S.V.Distilleries Private Limited-defendant seeking

recovery of an amount of Rs.29,46,342/- along with interest

and costs. 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

01.02.2018 and the matter was heard and suit was decreed

on 08.02.2018.

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.123 of 2019 in which notice was issued to the

defendant and the same was served to it in the month of

August, 2019 yet the defendant did not choose to contest the

execution petition and thus it was set ex parte and steps were

ordered on 23.01.2020. Later Execution Petition 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.372 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 and the Bailiff

had already attached the property. 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.2989 of 2021 before the trial Court on 25.06.2021 to

condone the delay of 1232 days in filing application viz.

I.A.No.2990 of 2021 to set aside the ex parte decree dated

08.02.2018. The defendant also filed W.P.No.201490 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 (xv) 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.29,46,342/- towards the principal amount and

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 08.02.2018. Only after filing of Execution Petition in

the month of August, 2021 the defendant filed applications

viz. I.A.Nos.2989 and 2990 of 2021 to condone the delay of

1232 days and to set aside the ex parte decree dated

08.02.2018. 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 08.02.2018.

When he received notices in Com.E.P.No.372 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 1232 days

from 08.02.2018 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.123 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 23.01.2020. Even as on 23.01.2020 he is having

knowledge of the ex parte decree dated 08.02.2018 but the

defendant came up with the application on 25.06.2021. 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 01.02.2018

and on 08.02.2018 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. As the counsel appearing for the

defendant did not represent the matter properly before the

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

against its counsel but it 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.372 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