No sufficient or bonafide reason shown for condonation of delay.

(Original Side Appeal filed against the fair and decretal order dated 11.8.2005 passed by the learned single Judge of this Court in Application No.915 of 2005 in C.S.No.1613 of 1991.)

M. Karpagavinayagam, J.

The appellant is the defendant.

2. The plaintiff filed the suit for recovery of the money payable as damages for the delay in delivery of the goods. Despite service of summons, the defendant did not choose to appear. Therefore, ex parte decree was passed on 31.8.1995. When the notice was served in the execution petition filed in pursuance of the said decree, the applicant/appellant approached the trial Court for condonation of the delay of 3415 days (about 10 years) in filing the application to set aside the ex parte decree.

3. According to the learned counsel for the appellant, the fact that the ex-parte decree was passed on 31.8.1995 came to be known to the appellant only after service of E.P. notice on 14.9.2004 and therefore, there was a delay. The same can be condoned for the purpose of giving an opportunity to the defendant/appellant to contest the suit. He cited the following decisions:

1) CHHABI KULAVI AND ANOTHER v. GANESH CHANDRA MONDAL (JT 2001(1) SC 267);

2) G.P.SRIVASTAVA v. SHRI R.K.RAIZADA AND OTHERS (JT 200(2) SC 569);

3) ROHINI PRASAD AND OTHERS v. KASTURCHAND AND ANOTHER (JT 2000(2) SC 573);

4) THIRUMURTHY v. MUTHAMMAL (2003(3) M.L.J.369).

4. We have heard the counsel for the appellant/applicant company and the learned counsel for the respondent/caveator.

5. On going through the records, it is clear that the suit has been filed on 26.12.1991 and the suit summons was served on the applicant Company on 21.1.1995. Despite the service of notice, the applicant has not chosen to appear before the Court. Therefore, ex-parte decree was passed on 31.8.1995. Even in the affidavit filed by the applicant requesting for condonation of delay, he would admit that the suit summons was served on the applicant Company on 21.1.1995. Therefore, the learned single Judge has dismissed the application, since there is no sufficient cause shown to explain the delay. The learned single Judge further observed that even after coming to know about the ex parte decree on 14.9.2004, there is a further delay and the application to condone the delay in filing the application to set aside the ex parte decree was filed only on 4.2.2005 and this delay also has not been explained.

6. Now, the learned counsel for the appellant, on the strength of the above decisions, would contend that even assuming that there is no sufficient cause for the delay, this Court can consider the application for condonation of delay for the purpose of giving an opportunity to the appellant to contest the suit.

7. We are afraid that such a contention cannot be urged by the counsel for the appellant, as in our view, the same is untenable.

8. In this context, it would be better to look at the various decisions of this Court and the Supreme Court dealing with the question:

(1) In INDIAN OIL CORPORATION LTD., MADRAS v. MRS.SAKUNTALA GANAPATHY RAO (1998(3) CTC 170, the Division Bench of this Court held that while considering whether there was sufficient cause, the Court should also take into account the legal right that had accrued in favour of the other side.

(2) In RAMNATH RAO @ RAM NATH SAHU AND OTEHRS v. GOBARDHAN SAO AND OTHERS (2002(1) CTC 769), the Supreme Court held that the expressions sufficient cause should receive liberal construction, so as to advance justice when no negligence, inaction or want to bona fide is imputable to the party and that pedantic and hypertechnical view should be taken and the explanation for the delay should not be rejected when, the stakes are high or where arguable points of facts and law are involved.

(3) In SANKARALINGAM AND ANOTHER v. V.RAHURAMAN (2002(3) CTC 13), this Court held that while dealing with the petition filed under Section 5, the Court should examine four aspects, namely:

(a) Whether petitioner has satisfactorily prov