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2013 DIGILAW 1372 (RAJ)

Security Exchange Corporation v. Vijaya Bank

2013-07-29

ARUN BHANSALI

body2013
JUDGMENT : Arun Bhansali, J. With the consent of the parties, the matter has been finally heard. 2. This appeal under Order 43, Rule 1 (d) CPC has been filed against the order dated 18.9.2012, whereby application filed by the appellant under Order 9, Rule 13 CPC seeking setting aside of the ex-parte decree dated 30.7.2001 has been dismissed as barred by limitation. 3. The facts in brief are that the respondent-Bank filed a suit for recovery of a sum of Rs. 72,175/- and the said suit was decreed ex-parte on 30.7.2001. An application under Order 9, Rule 13 CPC was filed by the appellant through her proprietor on 24.10.2007 with the averments that she was not served properly during the pendency of the suit and became aware of filing of the suit and the ex-parte decree only on 11.9.2007 when in the execution proceedings amount was sought to be recovered from her. 4. The application was opposed by the respondent-Bank by filing reply. 5. The trial court after hearing the parties came to the conclusion that even when the appellant became aware of passing of the ex-parte decree and the certified copy was received by her on 13.9.2007, the application under Order 9, Rule 13 CPC was filed on 24.10.2007, the same was barred by limitation and as no application under Section 5 of the Limitation Act seeking condonation of delay was filed, the application under Order 9, Rule 13 CPC was liable to be dismissed. 6. It is submitted by learned counsel for the appellant that the basis given by the learned trial court is factually incorrect, inasmuch as, the application seeking certified copy was filed on 12.9.2007 and the date fixed for supply of copy was 13.9.2007, however the copy was not ready on the said date, which was prepared on 18.9.2007 and was thereafter supplied on 25.9.2007. No notice was issued by the copying department after 18.9.2007 and, therefore, filing the application under Order 9, Rule 13 CPC was within limitation and consequently, the order impugned deserves to be quashed and set-aside. 7. No notice was issued by the copying department after 18.9.2007 and, therefore, filing the application under Order 9, Rule 13 CPC was within limitation and consequently, the order impugned deserves to be quashed and set-aside. 7. Learned counsel for the respondent-Bank opposed the submissions made by learned counsel for the appellant and submitted that the appellant was well aware of the pendency of the suit and, therefore, no indulgence should be granted when the application was moved after a passage of six years from the date ex-parte decree was passed. In alternative, it was submitted that if the Court comes to the conclusion that the appeal deserves to be allowed then the appellant be put to terms. 8. I have considered the rival submissions made by both the parties. 9. The application filed by the appellant under Order 9, Rule 13 CPC has been dismissed merely on the trial court coming to the conclusion that the application was barred by limitation and as application seeking condonation was not filed. As noticed above, the application for seeking certified copy was filed by the appellant on 12.9.2007 and the date fixed for supply of copy was 13.9.2007, however, the copy was not ready on that day and the same was prepared on 18.9.2007. As no notice was issued of the copy being ready and the same was received by the appellant on 25.9.2007 and the application under Order 9, Rule 13 CPC was filed on 24.10.2007, the same was within thirty days from the date of receipt of the copy. Once the copy is not ready on the date fixed by the office and if after the same is prepared, no notice of said preparation is issued by the copying department, the date of delivery would be the date for the purpose of calculating the limitation and, therefore, the trial court fell in error in coming to the conclusion that in absence of application under Section 5 of the Limitation Act, the application was liable to be dismissed. 10. 10. So far as argument of learned counsel for the respondent regarding the appellant being aware of the pendency of the suit is concerned, the trial court has apparently accepted the plea of the appellant of her being unaware of the pendency of the suit and passing of the ex-parte decree and, therefore, only it has calculated the limitation from the date of receipt of copy by the appellant, however, the date was wrongly calculated by the trial court and, therefore, there is no substance in the said argument of learned counsel for the respondent. 11. In the facts and circumstances of the case, the application filed by the appellant under Order 9, Rule 13 CPC is liable to be allowed. However, as an amount of Rs. 72,000/- alongwith interest of a public institution is involved in the matter and the allegation in the plaint relates to grant of overdraft facility to the appellant, in the facts and circumstances of the case the appellant would be required to deposit a sum of Rs. 35,000/- before the trial court as a pre-condition for setting aside the ex parte decree. 12. In view of the above, the appeal is partly allowed. The order dated 18.9.2012 passed by the trial court is set-aside. The application filed by the appellant under Order 9, Rule 13 CPC is allowed. The ex-parte decree dated 30.7.2001 passed in Civil Original Suit No.13/1998 is set-aside subject to the appellant depositing a sum of Rs. 35,000/- with the trial court within four weeks from today. In case the said amount is deposited, the appellant would be permitted to file her written statement and then the trial court shall proceed with the trial of the suit. The amount deposited may be disbursed to the Bank on its furnishing an undertaking that in case its suit is dismissed/decreed for a lessor amount, then the amount deposited by the appellant shall be refunded back by the plaintiff-Bank with interest @ 9% p.a. 13. In case the appellant fails to deposit the said amount within a period of four weeks, this appeal shall be deemed to have been dismissed. 14. The stay application also stands disposed of. 15. No costs. Appeal Partly Allowed.