R. Banumathi, J.

1. Whether non-pursuance of application filed in Civil Suit Diary No.31908 of 2011 under Order IX, Rule 7 C.P.C. which was returned and not represented would amount to withdrawal/abandonment of the claim under Order XXIII, Rule 1 C.P.C. and would preclude the Defendants from filing a fresh application and whether there was improper exercise of discretion in allowing of application filed in A.No.524 of 2012 are the points falling for consideration in this appeal.

2. Appellant-Plaintiff having account with the 2nd Respondent-Defendant availed certain credit facilities. Appellant filed suit C.S.No.193 of 2009 claiming Rs.49,74,318.77 under various heads:- (i) Rs.14,23,329/-towards delayed booking of Forward contract dated 7.4.2006; (ii) Rs.3,19,651.84 towards delayed booking of Forward contract dated 26.11.2007; (iii) Rs.1,28,048.77 towards raising of interest rate for Term loan of Rs.1,00,00,000/-; (iv) Rs.14,49,444/-for Prepayment penalty charges to over draft account; (v) Rs.10,04,564.70 towards closure of accounts and (vi) Rs.70,000/-towards processing charges. Suit summons were served on the Defendants on 13.3.2009. Case was listed in the "Undefended Board" for filing written statement and for representation of the vakalat. Defendants 1 and 2 being part of the same Bank, filed the written statement on 31.8.2009 along with application to condone the delay in filing the written statement. Registry returned the written statement on 02.9.2009 and application was returned on 08.09.2009. Respondents-Defendants did not represent the written statement and application for condonation of delay.

3. Case was posted on 07.9.2011 before Undefended Board and on the same day, Respondents-Defendants were set exparte. According to Respondents-Defendants, on 7.9.2011 when the matter was called in the open Court, the Junior Advocate appeared before the Court and made submissions praying for representation of the returned written statement along with condone delay application. It is stated that since the Junior Advocate was not a counsel on record, the Court was not inclined to consider his submissions and Respondents-Defendants were set exparte and the matter was directed to be posted before the Master on 15.09.2011. On 15.09.2011, P.W.1 was examined and Master directed the matter to be posted in the Court for passing orders. Accordingly, suit was posted in the Court for passing exparte decree on 13.10.2011 and the matter was then adjourned to 19.10.2011 and again on 10.11.2011, but not listed.

4. Respondents-Defendants filed application to set aside the exparte order in Diary No.31908 of 2011. Common written statement and application to condone the delay in filing the written statement was represented before the Registry in Diary No.28842 of 2009. Application to condone the delay in representing the written statement was filed along with Master's summon in A.No.5236 of 2011. The said application A.No.5236 of 2011 was dismissed by the Master on 02.12.2011 on the ground that no application could be entertained for want of application for setting aside the exparte order prior to preferring application.

5. Later the matter came up before the Court on 09.1.2012 and it was represented to the Court that Respondents-Defendants are intending to prefer an appeal against the order dated 2.12.2011 passed by the Master dismissing the application A.No.5236 of 2011. Appeal was filed against the order of Master in A.No.5236 of 2011 on 20.1.2012 along with application to condone the delay in filing the appeal in Diary Nos.1901 and 1903 of 2012 respectively. The said appeal along with delay condonation application was returned by the Registry on 31.1.2012. In the above circumstances, Respondents-Defendants have filed fresh application in A.No.524 of 2012 on 03.2.2012 to set aside the exparte order dated 07.9.2011 stating that they have good case on merits and prayed for setting aside the exparte order dated 07.9.2011 passed against