IMPORTANT POINT
An ex-parte decree can only be set aside if the defendant proves that summons was not duly served or that there was sufficient cause for their absence. The burden of proof lies with the defendant to show that the service was improper.

JUDGMENT :

R. MAHADEVAN, J.

1. This intra-court appeal is preferred by the appellant/defendant aggrieved by the order dated 05.02.2020 passed in Application No. 6100 of 2019 in C.S. No. 626 of 2006, whereby the application filed by them for setting aside the ex-parte decree dated 24.04.2009 passed in the suit was dismissed.

2. The respondent herein, as plaintiff, has filed the aforesaid suit against the appellant/defendant for the relief of recovery of Rs. 21,00,350/- (Rupees Twenty One Lakh Three Hundred and Fifty Only) with further interest on the principal amount of Rs. 11,90,000/- at 18% per annum from the date of plaint till the date of realisation.

3. For the sake of convenience, the parties are referred to hereunder, as per their litigative status in the suit in C.S. No. 626 of 2006.

4.......

(i) According to the plaintiff as averred in the plaint filed by them, the defendant had placed indent for supply, erection and commission of 2 Nos. 8 Passengers capsule escalators for their project at DDJ Centre, Opposite to Vadaseri Bus Stand, Nagercoil, Kanyakumari District. Such an order was placed from the local office of the defendant at Chennai. The Plaintiff through their letter dated 16.08.2001 offered to supply and install the lift as per the specification of the defendant and the defendant also accepted the offer so made by the plaintiff through their letter dated 21.08.2001.

(ii) The plaintiff further averred that the total contract price offered and accepted by the defendant was Rs. 17,00,000/-. As per the terms and conditions of the contract, the defendant has to pay 10% of total contract price, which is Rs. 1,70,000/- on placement of purchase order by the defendant, 40% of the total contract price amounting to Rs. 6,80,000/-on intimation of material readiness by the plaintiff and another 30% of the contract price on commencement of erection work. The plaintiff has admitted that the defendant had paid 10% of the total value of the contract i.e. Rs.1,70,000/- as advance through a cheque bearing No. 547933 dated 21.08.2001 drawn on Indian Bank, Casa Major Road, Egmore, Chennai. However, the defendant failed to honour the remaining terms of the contract and did not make the balance stage payments totalling Rs. 11,90,000/- i.e. 70% of the total contract price.

(iii) In spite of non-payment, the plaintiff, in order to continue the good business relationship, supplied machineries and commenced the erection work. For this purpose, the site Engineer of the plaintiff inspected the project site and found that even the preliminary civil construction work for the machine room and lift were not started by the defendant and it was intimated through a letter dated 16.11.2001. The plaintiff also sent another letter dated 14.12.2001 intimating the defendant about the completion of the machine room floor markings by them on 11.12.2001 and requested for the payment of material cost of Rs. 6,80,000/- representing 40% of the contract value. On 14.01.2002, the plaintiff sent a reminder to the defendant intimating the non-completion of construction work by the defendant inter-alia to release the balance payment. However, even after expiry of four months, the defendant failed and neglected to make the payment. The plaintiff therefore sent a letter dated 12.03.2002 as a reminder for payment, but the defendant deliberately failed to fulfil the terms of the contract. In response, the defendant sent a letter dated 12.04.2002 requesting to accept post dated cheque for Rs. 15,30,000/- on 15.06.2002 and informed the plaintiff that if erection and commissioning of lifts were not completed before 26.05.2002, the payment of the cheque will be stopped and the balance contract price of Rs. 15,30,000/- would not be paid. In reply, the plaintiff sent a letter dated 28.05.2002 to the defendant intimating that even the civil work was not completed in the project site by the defendant. Similar letter was sent by the plaintiff on 01.07.2002 inter-alia reminding the d