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2010 DIGILAW 1258 (MAD)

Meena v. Sajjan

2010-03-25

K.MOHAN RAM

body2010
Judgment : The defendant in O.S.No.3490 of 2006 on the file of the II Additional City Civil Court, Chennai is the petitioner in this Civil Revision Petition. The respondent herein filed O.S.No.3490 of 2006 for recovery of a sum of Rs.5,58,000/-on the basis of a promissory note said to have been executed by the petitioner herein for a sum of Rs.4,50,000/- in favour of the plaintiff. 2. It is the case of the respondent that the petitioner had also given her property measuring 1620 sq.ft., comprised in Natham Survey No.16-1/1, 1.19 situated at Jeyankondam Village, as Collateral security. On 20.09.2006, the petitioner/defendant entered appearance and failed to file a petition seeking leave to defend. Though the suit was adjourned twice to enable the petitioner to file a petition for leave to defend as no petition was filed and there was no representation for the petitioner, exparte decree was passed. Subsequently, the petitioner filed a Execution Petition to transfer the decree from the City Civil Court, Chennai to the District Court, Perambalur. E.P.No.85 of 2007 was taken by the District Court, Perambalur as per the transmit order dated 29.03.2007. 3. On 09.08.2007, notice was ordered to the petitioner herein in the said E.P. On 18.12.2007, the petitioner had entered appearance through her counsel in E.P.No.85 of 2007 and sought time for filing counter. Time was being periodically extended by adjourning the matter 14 times between 18.12.2007 and 20.11.2008. But the petitioner failed to file counter. Hence, on 20.11.2008, as no payment was made and the petitioner was absent, attachment was ordered and on 10.12.2008, the immovable property was attached. On 17.12.2008, the petitioner filed I.A.No.2204 of 2008 before the trial court to condone the delay of 786 days in filing the petition to set aside the exparte order dated 20.09.2006. Thereafter, on 23.12.2008, attachment had been recorded and time was given till 23.01.2009 for filing sale papers. On 22.01.2009, sale papers were filed. On 27.01.2009, sale notice was ordered. On 04.09.2009, sale notice was served and on 07.09.2009, inspite of service of sale notice, the petitioner/judgment debtor failed to be present before court and he was set exparte. Sale proclamation was ordered on 14.09.2009. On 14.09.2009, proclamation of sale was issued for a value of Rs.7,00,000/-. On 20.01.2010, sale was conducted. On 22.01.2010, I.A.No.22048 of 2008 was dismissed by the trial court. Sale proclamation was ordered on 14.09.2009. On 14.09.2009, proclamation of sale was issued for a value of Rs.7,00,000/-. On 20.01.2010, sale was conducted. On 22.01.2010, I.A.No.22048 of 2008 was dismissed by the trial court. On 27.01.2010, one Ajmal Hussain purchased the property in auction for a sum of Rs.7,00,100/-and deposited 1/4th of the sale amount and poundage of Rs.21,033/-was affixed. The balance of 1/4th of the sale amount of Rs.1,53,992/- was also deposited and time was given for depositing the balance 3/4th sale amount. In the mean time, the petitioner filed the above Civil Revision Petition and obtained stay. 4. In the affidavit filed in support of the petition to condone the delay, it has been stated that since the counsel had not informed her about the passing of the exparte decree and she came to know that on 15.12.2008, about attachment proceedings against her property and hence, the petition to set aside the exparte decree was not filed in time. The said petition was contested by the respondent contending that it is false to say that the petitioner came to know about the passing of the exparte decree only after she contacted her counsel. It is further contended that pursuant to the notice ordered on 09.08.2007 in E.P.No.85 of 2007, notice was served on the petitioner and in fact the petitioner had appeared before the execution court on 18.12.2007 itself and had taken 14 adjournments to file counter. When she subsequently did not file counter, on 10.12.2008, immovable property was attached and thereafter on 17.12.2008, the petition to set aside the exparte decree has been filed. 5. Considering the rival contentions, the court below has not accepted the explanation offered by the petitioner and by further pointing out that the petitioner has admitted the signature in the promissory note and had admitted that she had given the property as collateral security and since there was no valid defence in the suit, the court below dismissed the petition. Being aggrieved by the same, the petitioner is before this court. 6. Mr.A.Gouthaman, learned counsel for the petitioner contended that for the mistake on the part of the counsel, the party should not suffer. He further submitted that in a petition to condone the delay, the court should exercise discretion liberally and should not take a pedantic view, but should make pragmatic approach. 6. Mr.A.Gouthaman, learned counsel for the petitioner contended that for the mistake on the part of the counsel, the party should not suffer. He further submitted that in a petition to condone the delay, the court should exercise discretion liberally and should not take a pedantic view, but should make pragmatic approach. The learned counsel submitted that the property that has been brought for sale will easily fetch Rs.20,00,000/-, whereas, the same has been sold in execution for paltry amount of Rs.7,00,100/-. Only if the delay is condoned and the exparte decree is set aside, the valuable right of the petitioner will not be defeated. In support of the contention, the learned counsel placed reliance on the following decisions:- 1) (2001) 6 SCC 176 (M.K.PRASAD VS. P.ARUMUGAM) 2) 2005-2-L.W.276 (MOHAMMED ASLAM VS., C.N.A.GOWDHAMAN) 3) 2008-1-L.W.494 (M/S.T.V.SUNDARAM IYENGAR AND SONS LTD., AUTHORISED DEALER FOR PAL PEUGOT LTD., OMALUR MAIN ROAD, SALEM-9 VS. S.RAGHUNATHAN) 4) (2010) 7 MLJ 141 (SC) (IMPROVEMENT TRUST, LUDHIANA VS., UJAGAR SINGH AND OTHERS) 5) 1999 (II) CTC 623 (EDWIN ALEX VS., SYNDICATE BANK, KARINGAL BRANCH, REP. BY ITS BRANCH MANAGER) 6) (2010) 1 MLJ 1090 (G.KRISHNAMOORTHY VS. ARULMIGHU SRI PATALEESWARAR DEVASTHANAM REPRESENTED BY ITS EXECUTIVE OFFICER, THIRUPAPULIYUR, CUDDALORE) 7. Countering the said submissions, the learned counsel for the respondent submitted that the explanation offered by the petitioner to condone the delay of 786 days in filing the petition to set aside the exparte decree was palpably false. It is false to state that the petitioner came to know about the passing of the exparte decree only when she contacted her counsel. The learned counsel submitted that pursuant to the notice ordered in E.P.No.85 of 2007, on 09.08.2007, notice was served on the petitioner in the Execution petition and after receipt of notice, she had entered appearance through counsel in E.P.No.85 of 2007 on 18.12.2007 and she was dragging on till 20.11.2008 to file counter. Since no counter was filed and no payment was made, the petitioner was called absent and attachment was ordered and actually, the attachment was effected on 10.12.2008 and only thereafter, on 17.12.2008, the petitioner has filed the petition to set aside the exparte decree. 8. The aforesaid submission of the learned counsel for the respondent shows that there is a deliberate inaction on the part of the petitioner in prosecuting the proceedings and taking steps to set aside the exparte decree. 8. The aforesaid submission of the learned counsel for the respondent shows that there is a deliberate inaction on the part of the petitioner in prosecuting the proceedings and taking steps to set aside the exparte decree. The deliberate inaction and the attempt to drag on the proceedings before the execution court will clearly reveal the malafide intention on the part of the petitioner and therefore, the court below is right in dismissing the petition. The learned counsel further submitted that the court below has pointed out that the petitioner had admitted the signature in the promissory note and the property for attachment was also given as collateral security and there is no valid defence in the suit. The intention of the petitioner is only to drag on the proceedings. The learned counsel further submitted that since the property has been sold in auction in the execution proceedings, third party interest has also intervened. Therefore, it is not a fit case to interfere with the order passed by the court below. The learned counsel placed reliance on the decisions reported in 2007 (2) CTC 643 (G.Jayaraman S/o.Gangadara Mudaliar Vs., Devarajan S/0. Subramanian). 9. I have considered the aforesaid submissions made on either side and perused the materials available on record. 10. In the decision reported in (2001) 6 SCC 176 (M.K.PRASAD VS. P.ARUMUGAM), the Apex Court has laid down in paragraph 7 as follows:- "7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice." 11. In 2005-2-L.W.376 (MOHAMMED ASLAM AND OTHERS VS. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice." 11. In 2005-2-L.W.376 (MOHAMMED ASLAM AND OTHERS VS. C.N.A.GOWDHAMAN), a Division Bench of this Court laid down as follows:- "12. ....Somethimes, the delay of shortest range may be uncondonable due to want of acceptable explanation, whereas in certain other cases, delay of a very long range can be condoned as the explanation therefor is satisfactory. In every case of delay, there may be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. If the explanation does not smack the malafides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should not lean towards acceptance of the explanation. We are also aware that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. Now, even the higher court of this land have interpreted that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice." 12. In 2008-1-L.W.494 (M/S.T.V.SUNDARAM IYENGAR AND SONS LTD., AUTHORIZED DELAER FOR PAL PEUGOT LTD., OMALUR MAIN ROAD, SALEM-9), in paragraph 7, it has been laid down as follows:- "7. It is pertinent to point out that generally a party does not stand to benefit by filing an application late and refusing to condone the delay can result in a meritorious matter being thrown out at the nascent stage and cause of justice being defeated. As against this, the higher that can happen is that a cause would be decided on merits after hearing the litigants. A pedantic approach should not be made by the Court of law while dealing with the condonation of delay matters. On the other hand, the courts of law are to adopt a pragmatic approach. As against this, the higher that can happen is that a cause would be decided on merits after hearing the litigants. A pedantic approach should not be made by the Court of law while dealing with the condonation of delay matters. On the other hand, the courts of law are to adopt a pragmatic approach. In this connection, it is not out of place to make a mention that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim any vested right in injustice being done because of non deliberate delay. As a matter of fact, a party does not stand the benefit by resorting to delay. Per contra, he runs a serious risk. It cannot be again said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. " 13. In (2010) 7 MLJ 141 (SC) (IMPROVEMENT TRUST, LUDHIANA VS. UJAGAR SINGH AND OTHERS), in paragraph 15 and 16, it has been laid down as follows:- "15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of C.P.C., on merits and in accordance with law, at an early date. It is pertinent to point outthat unless malafide are writ large on the conduct of the party, generally as a normal rule, delay should condoned. In the legal arena, an attempt should always be made to allow the matter t be contested on merits rather than to throw it on such technicalities. 16. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. " 14. In 1999 (II) CTC 623 (Edwin Alex Vs. Syndicate Bank, Karingal Brach, rep. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. " 14. In 1999 (II) CTC 623 (Edwin Alex Vs. Syndicate Bank, Karingal Brach, rep. by its Branch Manager), the reason set forth to condone the delay of 265 days caused in filing the petition to restore the Execution Petition was that due to the failure of the Advocate to attend the court, the petition was dismissed. That explanation was accepted and the delay was condoned on terms. 15. In (2010) 1 MLJ 1090 (G.Krishnamorrthy Vs. Arulmighu Sri Pataleeswarar Devasthanam represented by its Executive Officer, Thirupapuliyur, Cuddalore, it has been laid that innocent party cannot suffer injustice because of the default of the advocate. 16. In 2007(2) CTC 643 (G.Jayaraman Vs. Devarajan), a learned Judge of this Court has laid down as follows:- "9. Of course, it is the consistent view taken by the Supreme Court in various decisions that sufficient cause" appearing in Section 5 of the Limitation Act should be liberally considered and the Court should be slow in shutting the door of justice to a litigant on the score of limitation. When the reasons for the delay is properly explained, the Court is to adopt a pragmatic approach to condone the delay when there is no negligence, inaction or want of bona fide on the part of the applicant. 10. At the same time, the discretion must not be exercised in any arbitrary or vague or fanciful manner; but must be exercised like any other judicial discretion with vigilance and circumspection. Delay cannot be condoned as a matter of judicial generosity. When delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone the delay. 11. The true test is whether the applicant has acted with due diligence. .... 14. As rightly pointed out by the learned counsel for the petitioner, while considering the plea relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view. When there is deliberate delay, the respondent herein cannot be heard to plead that substantial justice deserve to be preferred as against technical consideration" 17. When there is deliberate delay, the respondent herein cannot be heard to plead that substantial justice deserve to be preferred as against technical consideration" 17. In the light of the aforesaid legal principles, the submissions made on either side has to be considered. In the affidavit filed in support of the petition to condone the delay, it has been stated that the petitioners son had engaged a counsel to represent her in the suit. But the counsel did not represent her on the above suit and when it was called for hearing on 20.09.2006, she was set exparte and the suit was decreed exparte and the said fact came to the knowledge of the petitioner on 15.12.2008 when persons came to her house from Perambalur and told that her property was to be sold in public auction. Thereafter, she was said to have gone to Chennai and contacted her counsel and from him, she came to know that the exparte order was passed on 20.09.2006. 18. The said averments have been specifically denied by the respondent in the counter affidaivt filed by him. It is to be seen whether the said explanation is true and whether it is acceptable. 19. As contended by the learned counsel for the respondent, in E.P.85 of 2007 filed on the file of District Court, Perambalur, notice has been ordered to the petitioner on 09.08.2007 and the same had been served and on 18.12.2007, the petitioner had entered appearance through her counsel in the said E.P., and the E.P., was adjourned for filing counter. Subsequently, the E.P., was being adjourned from time to time for nearly 14 hearings and finally on 20.11.2008 since the petitioner/judgment debtor was absent, attachment was ordered and on 10.12.2008, immovable property was attached and only thereafter on 17.12.2008, the petition to set aside the exparte decree was filed. 20. Therefore, the aforesaid facts makes it abundantly clear that the explanation of the petitioner that she came to know on 15.12.2008 about the passing of the exparte order from the persons from the District Court, Perambalur when they came to her house cannot be accepted. 20. Therefore, the aforesaid facts makes it abundantly clear that the explanation of the petitioner that she came to know on 15.12.2008 about the passing of the exparte order from the persons from the District Court, Perambalur when they came to her house cannot be accepted. When she had received notice ordered on 09.08.2007 in E.P.No.85 of 2007, even before 18.12.2007 and she had entered appearance before the Execution Court on 18.12.2007, she cannot be heard to say that she came to know about the passing of the exparte order only on 15.12.2008 and after meeting her counsel, she filed the petition to set aside the exparte decree with a petition to condone the delay was false. 21. As rightly contended by the learned counsel for the respondent, the petitioner had not explained the delay between 18.12.2007 and 17.12.2008. When she had admittedly notice about the execution proceedings, in which, the exparte decree was sought to be executed, she could have immediately taken steps to file a petition to set aside the exparte order. But she was seeking for time to file counter in the execution petition and was dragging on the proceedings which shows her malafide intention. The inaction on the part of the petitioner in not filing the petition immediately on coming to know about the exparte decree could only be termed as deliberate. In such circumstances, the court below is right in not accepting the explanation offered by the petitioner. Therefore, the contention of the petitioner that since her counsel had not informed her about the passing of the exparte decree and that was the reason for not filing the petition to set aside the exparte decree in time is not acceptable. 22. In the light of the aforesaid facts, the decisions relied on by the learned counsel for the petitioner are not applicable to the facts of the present case. Whereas, the decision relied on by the learned counsel for the respondent applies to the facts of the case. The facts of that case also are similar to the facts of the case on hand. As rightly pointed out by the learned counsel for the respondent, while considering the plea relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view. The facts of that case also are similar to the facts of the case on hand. As rightly pointed out by the learned counsel for the respondent, while considering the plea relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view. When there is deliberate delay, the respondent herein cannot be heard to plead that substantial justice deserve to be preferred as against technical consideration. The delay cannot be excused as a matter of judicial generosity. Rendering substantial justice is not to cause prejudice to the opposite party. The Money suit was filed as early as on 03.04.2006 and the suit had been decreed exparte on 20.09.2006. But the petition to condone delay in seeking to set aside the exparte decree was filed only on 17.12.2008. In the mean time, the petitioner did not appear before the execution court and had taken more than one year time to file a counter and ultimately remained absent in the execution petition and the property was attached and consequently sold and the third party has purchased and hence, third party interest has also intervened. 23. In the facts and circumstances of the case, the petitioner, who is claiming indulgence has failed to prove that she was reasonable in prosecuting the matter and the reasons stated to condone the delay are not satisfactory. Liberal exercise of jurisdiction under Section 5 of the Limitation Act would cause prejudice to the respondent/plaintiff, who has been pursuing the money suit for quite a long time. Refusing to condone the delay, the court below has not committed any impropriety in the exercise of jurisdiction and therefore, this court do not find any error much less jurisdictional error in the order passed by the court below. 24. For the aforesaid reasons, the Civil Revision Petition fails and the same is dismissed. However, there will be no orders as to costs.