1. This is an Appeal filed by the plaintiff to set aside the order passed in A. No. 806 of 2008 in C.S No. 222 of 2006 by the learned Master, dated 21.10.2008 and to pass such further order as the Court may deem it fit in the circumstances of the case.
2. In A. No. 806 of 2008, the learned Master, by an order, dated 21.10.2008 allowed the Application filed by the defendant for condoning the delay of 541 days in filing the Application to set aside the ex parte decree on condition that the applicant in that Application shall pay a sum of Rs. 20,000/- to the plaintiff. The said Application was filed by the defendants under Order 14, Rule 10 of the Madras High Court Original Side Rules to condone the delay.
3. The Suit was filed by the plaintiff under Order 37, Rule 1 for a judgment and decree in favour of the plaintiff for a sum of Rs. 35 lakhs against the defendant together with interest at the rate of 18% per annum. The suit was admitted and the Suit summons were served. As there was no appearance, an ex parte decree, dated 21.01.2007 in C.S No. 222 of 2006 was passed. Application No. 806 of 2008 was filed by the defendants to condone the delay of 541 days in filing the Application to set aside the ex parte decree.
4. It was stated by the first defendant that he had received the notice from this Court. He engaged an Advocate to file vakalat. In the meanwhile, he received a notice in E.P No. 169 of 2007. When he contacted the Advocate over phone, he could not get in touch with him. His attempts to contact him through e-mail had failed. When he visited the Advocate's house at Anna Nagar, it was found locked. Therefore, he engaged an another counsel for verifying the records. It was found that the previous counsel did not file vakalat and had allowed the matter to proceed ex parte. It was stated that the Suit was filed for recovery of Rs. 35 lakhs with interest. But, he has no liability to pay any amount. In that process, the delay had occurred.
5. A counter Affidavit was filed stating that the defendants have not taken any steps to file an Application to obtain leave to defend the Suit. He approached the Court only after the E.P notice was served. Therefore, his mistake cannot be excusable.
6. Considering the facts and circumstances of the case, the learned Master, by his order, dated 21.10.2008, allowed the Application with cost of Rs. 20,000/-.
7. It is as against the same, the Appeal in A. No. 278 of 2009 was filed by the applicant/plaintiff under Order 14, Rule 12 of the Madras High Court Original Side Rules. In the Appeal, it was stated that the legal principles set out in the judgment in Rajni Kumar v. Suresh Kumar Malhotra and another, 2003 (2) CTC 59 (SC): 2003 (5) SCC 315; and Defiance Knitting Industries (P) Ltd. v. Jay Arts., 2006 (5) CTC 186 (SC): 2006 (8) SCC 25, were not considered and there were no special circumstances for entertaining such an Application.
8. On notice on this Application, a counter affidavit has been filed by the respondents/defendants. It was stated that the defendants had no money due and payable to the plaintiff and as such under Order 37, the Suit is not maintainable. There are good grounds to set aside the ex parte order. The order of the learned Master did not suffer from any infirmity.
9. In the decision in Rajni Kumar v. Suresh Kumar Malhotra and another, 2003 (2) CTC 59 (SC): 2003 (5) SCC 315, the Supreme Court had defined as to what is the meaning of the term “special circumstances”. In paragraph 9 of the said judgment, it has been held as follows:
“9. The expression ‘special circumstances’ is not defined in the Civil Procedure Code nor is it capable of any precise definition by the Court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an Application under Order 37, Rule 4, the Court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the Suit.
10. In the judgment in Defiance Knitting Industries (P) Ltd. v. Jay Arts., 2006 (5) CTC 186 (SC): 2006 (8) SCC 25, the Supreme Court in paragraph 13 has held as follows:
“13.While giving leave to defend the suit the Court shall observe the following principles:
(a) If the Court is of the opinion that the case raises a triable issue then leave to defend should ordinarily be granted unconditionally. See Milkhiram (India) (P) Ltd. v. Chamanlal Bros. The question whether the defence raises a triable issue or not has to be ascertained by the Court from the pleadings before it and the Affidavits of parties.
(b) If the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious it may refuse leave to defend altogether. Kiranmoyee Dassi v. Dr. J. Chatterjee, (noted and approved in Mechelec case).
(c) In cases where the Court entertains a genuine doubt on the question as to whether the defence is genuine or sham or whether it raises a triable issue or not, the Court may impose conditions in granting leave to defend.
11. On the contrary, the counsel for the defendants placed reliance upon the judgment of the Supreme Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987 (2) SCC 107, for the purpose of showing that justice oriented approach should be seen in the matter of condonation of delay. For this purpose, a reliance was placed upon paragraph 3 of the said judgment, which is as follows:
“3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice' that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
“1. Ordinarily a litigant does not stand to benefit by lodging an Appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
12. The learned counsel also placed reliance upon the judgment of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy., 1998 (2) CTC 533 (SC): 1998 (7) SCC 123, and referred to the following passages found in paragraphs 12 and 13 of the said judgment, which are as follows:
“12. A Court knows that refusal to condone 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. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari and State of W.B v. Administrator, Howrah Municipality.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides 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 lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss.
13. Lastly, the learned counsel referred to the decision of the Division Bench of this Court in Ravi Enterprises and others v. Indian Bank and others, 2008 (1) CTC 785, wherein the Division Bench of this Court in paragraph 14 had observed as follows:
“14. We are of the view that refusal to condone delay can result in a meritorious matter being thrown at the early stage and cause of justice being defeated. Moreover, the law Courts should not prefer to adopt a pedantic approach and on the other hand a pragmatic approach has to be made to deliver substantial justice overriding technical considerations as far as present case is concerned. Furthermore, a party does not stand to benefit by adopting delay. Per contra, he runs a grave risk. It cannot gainsaid that judiciary is respected because it is capable of removing injustice and is expected to do so. Admittedly, the claim of the first respondent-Bank is for Rs. 20,71,776/- together with interest at the rate of 19.89% p.a with quarterly rests from the date of the Application till the date of realization, etc. The learned counsel for the writ petitioners informs this Court that already a sum of Rs. 15 lakhs was paid and the petitioners/appellants/defendants are willing to pay the rest of the amount and to settle the matter. It cannot be denied that the Debt Recovery Tribunal has power to recall the Recovery Certificate even after its issuance on the basis that the matter was settled between the creditor/Bank and the borrower/guarantor. No wonder the recovery of due is an essential function of any Bank. At this juncture, it cannot be lost sight of that the preamble of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 speaks of expeditious adjudication and recovery of debts due to banks and financial institutions. Moreover, merely because an Application for setting aside the ex parte order having been allowed to go for wilful default and also allowed the Restoration Petition also dismissed for default, it cannot be said by any means that the writ petitioners lack bona fides in their endeavour to set aside the ex parte order. In short, the length of delay is immaterial, in our considered opinion.”
14. In the light of the same, the learned counsel pleaded for the dismissal of the Appeal filed by the plaintiff.
15. A careful perusal of the order passed by the learned Master and the decisions cited at the Bar clearly shows that the order of the learned Master did not suffer any infirmity. The learned Master has taken into account the relevant circumstances to condone the delay. The defendants have shown sufficient cause for non approaching this Court at an earlier point of time and they cannot be blamed as the counsel engaged by them had kept them in dark. Therefore, by engaging the second counsel, the defendants came to know about the ex parte decree.
16. While there is no quarrel with the legal propositions set out in the cases cited by the plaintiff, but under the facts and circumstances of the case, the respondents/defendants have proved that there was sufficient cause for not approaching this Court earlier. The learned Master had also put the parties on terms, which in the interest of equity and fair play and would satisfy the sufferings of the plaintiff. Hence the order of the learned Master does not call for any interference.
17. In the light of the above, the Application in A. No. 278 of 2009 stands dismissed. No costs.
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