Petition to condonation of delay not accepted by Court.

1. The petitioner is the defendant against whom an ex parte decree was passed. The petitioner is aggrieved by the refusal to set aside the ex parte decree. The respondent filed O.S.No.5852 of 1997 for a declaration that she is a lawful owner of the Schedule mentioned shares and for a permanent injunction and for other reliefs. An ex parte decree was passed on 12.1.1998. The petitioner filed the application to set aside the ex parte decree on 1.3.1999 with a delay of 421 days. The reason given for the delay was not accepted by the Court below. Therefore, the civil revision petition is filed.

2. Mr. V.Natraj, learned counsel for the petitioner submitted that the short cause title shows the address of the petitioner at 56, Mogra Village Lane, Andheri (E), Bombay 400 069. But actually the address is at Nariman point, Bombay 21 and therefore,, they did not have the knowledge of the ex parte decree immediately and had filed the application after they received information of the passing of ex parte decree though with a delay. He relied on the judgment of the Supreme court in N. Balakrishnan v. H. Krishnamurthy, 1998 (7) SCC 123 where the Supreme Court held that the length of delay is not relevant and that rules of limitation are not meant to destroy the rights of parties. He also referred to the decision reported in Suryanarayana Paper and Boards Pvt. Ltd., v. V. Padmakumar, 1997 (88) Com. Cases 684 where this Court had held that the residence of a company in India is where its registered office is located and it is desirable that normally case should be filed where the registered office is situated. He submitted that third party's rights will suffer when the ex parte decree is not set aside and to advance the interest of justice the Court should accept the cause offered by the petitioner for the delay and order the application as prayed for.

3. The learned counsel for the respondent on the other hand submitted that no reason whatsoever has been given for the delay and therefore, the Court cannot come to the conclusion that there was sufficient cause. He also submitted that there has been correspondence between the respondent and Karvy Consultancy which is the legal unit of the petitioner which clearly indicated that the petitioner was going to comply with the decree passed and in fact out of the 1550 shares that were subject matter of the suit already 1390 shares have been dematerialized and at this stage it was not open to the petitioner to come forward with this revision and he also submitted that the question of rights of third parties intervening does not arise in this case. He referred to the decision reported in Indian Oil Corporation Ltd.. v. Mrs. Sakuntala Ganapathy Rao, 1998 (3) CTC 170, where a Division Bench of this Court dealt with the considerations to be borne in mind by the Court while dealing with applications under Section 5 of the Limitation Act and also to the decision reported in Sri Veera Hanuman Rice and Flour Mill v. State Bank of India, 2000 AIR SCW 2575.

4. Theex parte decree was passed on 12.1.1998 and it is seen that the respondent was informed of it by the petitioner on 1.4.1998 itself. This is admitted by the petitioner. In fact the averment in the affidavit in support of the petition is that,

"The petitioner came to know about the ex parte decree only on 1.4.98 when it received a letter from the plaintiff. The petitioner immediately got in touch with its counsel at Chennai to verify the above fact. consequently there was a delay in filing the present application for setting aside the ex parte decree as the Petitioner had to obtain the relevant facts and this exercise took some time."

5. According to the petitioner, they came to know about the ex parte decree on 1.4.1998 and casually it is stated that they got in touch with the counsel and consequently there is a delay, as if it was a delay of just one or two days and not from 1.4.1998 to 1.3.1999. No explanation is given. The petitioner did