BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.1599 of 2007 Bank of India by its Senior Manager Narimedu Branch, Madurai ... Petitioner Vs 1.Ponnuthayammal 2.S.Selvam 3.S.Kumar ... Respondents Prayer This Civil Revision Petition is filed against the fair and decreetal order dated 28.8.2007 passed in IA.NO.268/2007 in OS.No.107/2004 by the learned Additional District and Sessions Court (FTC-III) Madurai. !For Petitioner ... Mr.R.Subramanian ^For Respondent ... Mr.S.Manohar :ORDER
This Civil Revision Petition is filed against the fair and decreetal
order dated 28.8.2007 passed in IA.NO.268/2007 in OS.No.107/2004 by the learned
Additional District and Sessions Court (FTC-III) Madurai.
2. The Petitioner Bank has filed a mortgage suit in OS.NO.193/2000
before the learned Principal Subordinate Judge, Madurai for recovery of a sum of
Rs.7,35,191/- with subsequent interest and cost. The Respondents have entered
appearance through their counsel and filed a Written Statement and thereafter
they allowed the suit to be decreed exparte on 15.9.2004. A preliminary decree
had been passed on 15.9.2004 and the Petitioner had filed IA.NO.422/2006 for
passing of final decree on 15.12.2006.
3. The Respondents have received the notice in IA.No.422/2006 and
participated in the final decree proceedings by filing a counter. Thereafter,
the Respondents have filed an application in IA.No.268/2007 to condone the delay
of 968 days in filing the application to set aside the exparte preliminary
decree passed on 15.9.2004. The Petitioner Bank had resisted the said
application by filing a counter, contending that the suit was filed in the year
2000 in OS.No.193/2000 before the Principal Sub Court and due to change of
pecuniary jurisdiction, it was transferred to FTC-III court and renumbered as
OS.No.107/2004. Even though the Respondents appeared in the final decree
proceedings on 22.12.2006 they have not chosen to file any application to set
aside the preliminary decree and they have not objected to the preliminary
decree in the counter filed by them in the final decree proceedings.
4. It is stated by the Petitioner that the reason adduced by the
respondents do not satisfactorily explain the delay and though there is a
willful and deliberate inaction on the part of the Respondents, the trial court
allowed the application on payment of suit costs by the Respondents to the
Petitioner.
5. Mr.R.Subramanian, the learned counsel for the Petitioner would
contend that though the Respondents had knowledge about the preliminary decree
as early as on 15.12.2006, they have not adduced any proper explanation for the
inordinate delay and thus there is a deliberate inaction on the part of the
Respondents. He would contend that in spite of the said fact, the court below
had allowed the petition merely on the ground that an opportunity should be
given to the Respondents.
6. In the instant case, the petition to condone the delay has been
filed by the Defendants 1, 6 and 7 and the affidavit had been sworn by the 7th
Defendant stating that he was looking after the case on behalf of the other
Defendants. The Written Statement of the Defendants had been filed in the suit
in June 2002 and thereafter, he has absented for more than five years without
any plausible explanation for his non appearance. According to him, he was busy
with construction work at Chennai and hence, he could not contact his counsel
and only on 15.12.2006, when he happened to attend a family function at Madurai,
he received the notice from the court in the final decree proceedings and came
to know about the preliminary decree that was passed on 15.9.2004. There is
absolutely no satisfactory explanation for the delay in filing the petition as
he has not even attempted to contact his counsel and try to know about the
progress of the case for more than five years and it shows their willful
negligence and deliberate inaction on the part of the respondents.
7. Even assuming that the 7th respondent had come to know about the preliminary
decree only on 22.12.2006, even thereafter he has not filed an application to
set aside the exparte preliminary decree though he had entered appearance on
22.12.2006 in the final decree proceedings, contested the said proceedings by
filing a counter on 18.4.2007, but only on 4.6.2007, he has filed this petition
to condone the delay of 968 days. There is absolutely no explanation from him
for the delay caused from 15.12.2006 to till the date of filing of the petition
for condonation of the delay. It clearly shows gross negligence and total
inactiveness on the part of the Respondents.
8. It is true that the length of delay is not relevant to set aside
the exparte decree provided that sufficient cause is shown. But it shall be
taken into consideration that whether by condoning the delay it would lead to
deprivation of a valuable right to the Petitioner who would be prejudiced by
prolonged litigation. In the instant case in my opinion by allowing the
petition, it would only be permitting the defaulting party to take advantage of
their default.
9. The learned counsel for the Respondents drew the attention of
this court to the decision of this court rendered in the case of Ravi
Enterprises by its Partner and others Vs. India Bank, Thiruvottiyur Branch and
others [2008-1-CTC-785] in support of his contention that the court has to adopt
a pragmatic approach in matters of condonation of delay and deliver substantial
justice overriding technical considerations. What is sufficient cause for non
appearance and whether there is proper explanation for the condonation of delay
is a question of fact and it would depend on the varied and special
circumstances of each case. In cases of discretion it is very undesirable act
of precedents as every case has to be dealt with the particular facts of each
case and therefore, the question cannot be decided with the aid of decisions.
10. In this case, there is a deliberate and gross negligence on the
part of the Respondents which has
resulted in prolonged litigation and the court below without considering the
said aspect has allowed the application merely on the ground that an opportunity
should be given to the Respondents, which is liable to be set aside and
accordingly, it is set aside.
11. In the result, this Civil Revision Petition is allowed. No
costs.
Srcm
To:
The Additional District and Sessions Judge (FTC-III) Madurai.