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2012 DIGILAW 1695 (MAD)

P. Murugesan v. K. Balasubramanian

2012-04-02

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 02.11.2011 passed by the learned 1st Additional Subordinate Judge of Erode in I.A.No.570 of 2011 in O.S.No.112 of 2010, this civil revision petition is focussed. 2. Heard both sides. 3. Synoptically and succinctly, the germane facts absolutely necessary for the disposal of this revision would run thus: The respondent/plaintiff filed the suit for recovery of a sum of Rs.3,25,000/- based on the cheque issued by the defendant in favour of the plaintiff. After entering appearance the defendant did not file the written statement. The lower Court on 27.07.2010 passed the ex parte decree, as against which application in I.A.No.202 of 2011 was filed under Section 5 of the Limitation Act to get the delay condoned in filing the application under Order 9 Rule 13 of CPC to get the exparte decree set aside. The said I.A.No.202 of 2011 was allowed on 15.06.2011. Thereafter I.A.No.570 of 2011 under Order 9 Rule 13 was allowed subject to the condition that the petitioner/defendant shall deposit half of the suit cheque amount on or before 01.12.2011, failing which the said petition shall stand automatically dismissed. The fact remains that within the time stipulated, the said amount was not deposited, because according to the revision petitioner the said condition was onerous. It is therefore clear that the order passed in I.A.No.570 of 2011 worked itself out and thereby the said I.A. stood dismissed. Whereupon this revision has been filed on various grounds. 4. Placing reliance on the grounds of revision, the learned counsel for the petitioner would put forth and set forth his arguments the gist and kernel of them would run thus: The lower Court imposed the onerous condition to the effect that half of the cheque amount should be deposited, when in fact the petitioner/defendant was not at all liable to pay any amount to the respondent/plaintiff. 5. In a bid to torpedo and pulverise the arguments as put forth on the side of the petitioner/defendant, the learned counsel for the respondent/plaintiff, would pilot his arguments the pith and marrow of the same would run thus: This court in this Civil Revision Petition granted interim stay vide the order dated 18.01.2012 in M.P.No.1 of 2012 stipulating that a sum of Rs.1,50,000/- should be deposited in the lower Court within the stipulated time, but that was not complied with. There was no complacent conduct on the part of the petitioner so as to get himself deserved of any sympathetic order in his favour. He not only violated the lower Court order, but flouted the order of this Court, whereby he does not deserve any favourable order in his favour at the hands of this Court. The written statement also was not filed along with the said applications to get the delay condoned and in getting the exparte decree set aside. As per order 8 Rule 1 of CPC, 30 days and 90 days formula is contemplated, but the defendant simply flouted the provisions of law also. Till today no written statement has been filed or is found enclosed with any petition. There is no reason much less valid reason for setting aside the exparte decree and there is also no sound ground for exonerating the petitioner from complying with the order directing him to deposit half of the suit cheque amount. 6. The points for consideration are as to: (1) whether directing the revision petitioner to deposit half of the suit cheque amount is onerous and if so, whether the said order has to be revised? (2) Whether there is any perversity or illegality in the judgment and decree of the lower court? 7. Both these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with each other. 8. At the outset itself, I would like to point out that the above narration of facts would demonstrate and display, exemplify and expatiate that there are laches on the part of the revision petitioner in prosecuting the matter. Even in the application to get the delay condoned in filing the application under Order IX Rule 13 of CPC, the written statement was not found enclosed; even now, he has not enclosed herewith any petition, his written statement to show his bona fides. The suit is one for recovery of money and that fact cannot be lost sight of. 9. The petitioner also did not make use of the conditional order passed by the lower court in depositing half of the suit cheque amount; over and above that the petitioner also has not complied with the order of this Court in directing him to deposit at least Rs.1,50,000/- before the court below. 10. 9. The petitioner also did not make use of the conditional order passed by the lower court in depositing half of the suit cheque amount; over and above that the petitioner also has not complied with the order of this Court in directing him to deposit at least Rs.1,50,000/- before the court below. 10. The core question arises as to whether, despite all these laches, the petitioner deserves any merciful order at the hands of this court. 11. Notwithstanding the fact that the suit is one for recovery of money, and due opportunity has to be given to the revision petitioner/defendant to defend his case, yet there should be some safe-guard for the plaintiff and that too in view of the conduct of the defendant so far in the litigative process. Already Execution Petition has been filed by the respondent/plaintiff for enforcing the decree. However, the petitioner has not even come forward to furnish any security for the suit amount. In such a case, if the order of the lower court is varied, certainly, in the event of any decree being passed, ultimately in favour of the plaintiff, after setting aside the exparte decree, the plaintiff would be put to discomfiture and difficulty in enforcing and implementing the decree. 12. As such, I could see no perversity or illegality in the condition imposed by the court below in mandating the defendant to deposit half of the suit cheque amount, which comes to Rs.1,62,500/- (Rupees one lakh sixty two thousand and five hundred only), and which in my considered opinion, is not onerous or exorbitant in the wake of singularly singular circumstances as highlighted supra involved in this case. The proper procedure, which the defendant should have followed was that he should have prepared the written statement and enclosed it along with I.A.No.202 of 2011, which was filed for getting the delay condoned in filing the application under Order IX Rule 4 of CPC. As such, at every stage, the defendant was guilty of laches. However, in the interest of audi alteram partem, I am of the view that one more opportunity should be given to the defendant by compensating the inconvenience caused to the plaintiff, by awarding cost payable by the defendant to the plaintiff. 13. As such, at every stage, the defendant was guilty of laches. However, in the interest of audi alteram partem, I am of the view that one more opportunity should be given to the defendant by compensating the inconvenience caused to the plaintiff, by awarding cost payable by the defendant to the plaintiff. 13. Accordingly, this revision is allowed subject to the following condition: The revision petitioner/defendant shall pay a sum of Rs.5,000/-(Rupees five thousand only) as cost directly to the respondent/plaintiff and in addition to that the said sum of Rs.1,62,500/- (Rupees one lakh sixty two thousand and five hundred only) shall be deposited in the lower court in the account of the said suit within a period of one month, so to say, on or before 30.04.2012. The petitioner shall also file the written statement at the time of depositing the amount. On such compliance with this order, the exparte decree shall stand set aside and the Execution proceedings shall stand dismissed and the court below is expected to dispose of the suit as per law within a period of six weeks thereafter. In case of non-compliance with this order, the revision petitioner will not be entitled to any benefit under this order and the respondent/plaintiff is at liberty to proceed with the Execution Proceedings. No costs. Consequently, connected miscellaneous petition is closed.