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High Court of Judicature at Madras
R. BANUMATHI & B. RAJENDRAN
K.S. Rajendhiran
Versus
Dr. M.R. Muralikrishnan & Another
O.S.A. No. 47 of 2011
Decided on : 12-09-2011
Delay in Setting Aside Exparte Decree - Partnership Dispute - Order V Rule 2 of CPC, Section 123 of the Limitation Act - The court dismissed the application to condone the delay in setting aside the exparte decree dated 29.12.2004 in C.S. No. 923 of 2002. The appellant contended that the summons were not served along with the plaint copy, and the delay in filing the application was justified as he came to know about the exparte decree only on 28.04.2008. The court rejected the appellant's arguments, stating that the appellant had knowledge of the exparte decree as early as 18.12.2006 and failed to provide convincing reasons for the delay. The court also found that the appellant's affidavit lacked bonafides and was devoid of truth. The court held that the suit was not vexatious and the appellant had failed to approach the Court in time and with clean hands. The court dismissed the application to condone the delay, stating that the appellant was estopped from contending that the suit was vexatious or that he was not afforded a reasonable opportunity to defend the suit on merits.
Fact of the Case:
The appellant filed an application to condone the delay of 1281 days in setting aside the exparte decree dated 29.12.2004 in C.S. No. 923 of 2002, citing a partnership dispute and alleging that the summons were not served along with the plaint copy. The first respondent resisted the application, claiming that the appellant received a substantial amount from the first respondent and failed to repay it, leading to the filing of the suit.
Finding of the Court:
The court found that the appellant had knowledge of the exparte decree as early as 18.12.2006 and failed to provide convincing reasons for the delay. The court also found that the appellant's affidavit lacked bonafides and was devoid of truth. The court held that the suit was not vexatious and the appellant had failed to approach the Court in time and with clean hands. The court dismissed the application to condone the delay, stating that the appellant was estopped from contending that the suit was vexatious or that he was not afforded a reasonable opportunity to defend the suit on merits.
Issues: Partnership dispute, delay in setting aside exparte decree, sufficiency of reasons for delay, bonafides of appellant's affidavit, estoppel of the appellant from contending the suit was vexatious
Ratio Decidendi: The appellant's knowledge of the exparte decree as early as 18.12.2006, lack of convincing reasons for the delay, and the lack of bonafides in the appellant's affidavit led the court to dismiss the application to condone the delay. The court also held that the appellant was estopped from contending that the suit was vexatious or that he was not afforded a reasonable opportunity to defend the suit on merits.
Final Decision: The court dismissed the application to condone the delay, confirming the order dated 18.02.2010 passed by the learned single Judge in Application No. 3447 of 2008 in C.S. No. 923 of 2002.
B. RAJENDRAN, J
1. The appellant has come forward with this appeal against the order dated 18.02.2010 dismissing his application No. 3447 of 2008 in C.S. No. 923 of 2002 which was filed for condoning the delay of 1281 days in setting aside the exparte decree dated 29.12.2004 passed in the suit.
2. According to the appellant, he, along with the the first respondent carried on partnership business for mining and quarrying granite blocks as per the memorandum of understanding entered into between them as early as on 06.06.1996. The partnership business was stopped on and from August 1996 due to misunderstanding between the partners. Thereafter, based on a complaint given by the first respondent herein to the police complaining non-payment of amount, the appellant was arrested. During his police custody, at the instigation of the respondents herein, the signatures of the appellant were obtained in blank papers and it was utilised by the respondents to file the suit in C.S. No. 923 of 2002 against the appellant. The appellant would further contend that he came to know about the exparte decree dated 29.12.2004 passed in the suit only when he returned from Andhra Pradesh to Chennai and found that the summons in respect of EP No. 113 of 2006 in C.S. No. 923 of 2002 in Proclamation case No.1 of 2007 were affixed on his houe at No.54, Gajapathy Street, Shenoy Nagar, Chennai - 600 030 on 28.04.2008. Therefore, he came to know about the exparte decree dated 29.12.2004 passed in the suit only on 28.04.2008. As the suit itself was filed, based on a fabricated agreement dated 23.01.2001, for recovery of a sum of Rs.50,00,000/-together with interest at the rate of 24% per annum on Rs.24,00,000/-, in which the exparte decree dated 29.12.2004 was passed without serving summons on him, the exparte decree is liable to be set aside. Even though the plaint indicates the address as No.54, Gajapathy Street, Shenoy Nagar, Chennai, he was not regularly residing there. Even the substituted service ordered by the Court prior to granting the exparte decree was not a true and proper service. The suit summons have not been served nor the summons in the Execution Petition served on him. Since there is no proper compliance to the provisions contained in Order V Rule 2 of CPC, in respect of service of summons, he has filed the present application to set aside the exparte decree. As there was a delay caused in filing the application to set aside the exparte decree dated 29.12.2004, inasmuch as he came to know about the exparte decree only on 28.04.2008, the delay is justified and immediately on coming to know about the exparte decree on 28.04.2008, he filed the application for setting aside the exparte decree.
3. The first respondent vehemently resisted the application filed by the appellant on the ground that the appellant was not a business partner along with the first respondent and there is no partnership agreement between them. The appellant received Rs.17 lakhs by way of two cheques, Rs.2 lakhs in cash and another sum of Rs.5 lakhs in cash separately. Ultimately, an agreement was entered into between the appellant and the first respondent herein to that effect. After receiving Rs.24 lakhs from the first respondent, the appellant, instead of utilising it for his business needs spent the amount for his personal needs. In fact, the money was paid when the appellant was a tenant under the respondents herein and the appellant also agreed to pay the amount with interest. As the appellant did not repay the amount within six months as agreed, the agreement dated 23.01.2001 was executed, whereby the appellant agreed to pay the amount within six months. In spite of lapse of time, since the appellant has not come forward to pay the amount, the suit was filed. Originally the suit was filed along with an application for attachment and the summons in the said application were duly served on the appellant through court. On receipt of the summons, the appellant
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