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IN THE HIGH COURT OF JUDICATURE AT MADRAS
ANITA SUMANTH, C.KUMARAPPAN, JJ.
M/s. Boomi Bottling Gas Co. Pvt. Ltd. - Appellant
Vs.
M/s Operating Lease and Hire Purchase Company Limited - Respondent
CMP No. 4532 of 2025 And OSA SR No. 11846 Of 2023
Decided On : 01-04-2025
(A) Code of Civil Procedure, 1908 - Order IX Rule 13 and Section 96(2) - Condonation of delay - Appellants sought to set aside an exparte decree after a delay of 4487 days, claiming insufficient cause - Court found no justification for the delay, noting prior knowledge of the decree - The right to appeal is distinct from the remedy of setting aside an exparte decree. (Paras 14, 17, 19, 22)
(B) Delay in filing appeal - The court emphasized the need for diligence and bonafides in seeking condonation of delay, rejecting the appellants' contradictory claims regarding their knowledge of the decree. (Paras 20, 21)
Facts of the case:
The appellants, a company and its managing director, failed to contest a suit for recovery of money under hire purchase agreements, leading to an exparte decree. They later sought to set aside the decree after a significant delay, which was contested by the respondent.
Findings of Court:
The court concluded that the appellants did not establish sufficient cause for the delay and had been aware of the exparte decree long before filing their application.
Issues: The main issue was whether the appellants had made out sufficient cause for the delay in filing the appeal against the exparte decree.
Ratio Decidendi: The court ruled that the appellants failed to demonstrate diligence or bonafides in their application for condonation of delay, emphasizing the importance of timely action in legal proceedings.
Result: Miscellaneous Petition and Original Side Appeal dismissed.
ORDER :
(Order of the Court was made by Dr.Anita Sumanth J.)
The appellants, a Company and its Managing Director, are D1 and D2 in C.S.No.607 of 2008. The parties are referred to as per the rank in the present appeal. The prayer in that suit was for recovery of monies due under three hire purchase agreements.
2. Admittedly, the appellants did not contest the suit and the suit came to be decreed exparte on 07.07.2010. Thereafter, an application was filed by the appellants in A.No.1707 of 2022 seeking condonation of delay of 4245 days in setting aside of the exparte decree. The learned single Judge allowed the same on 05.08.2022 on condition that a sum of Rs.20.00 lakhs be deposited to the credit of the suit, which order was complied with.
3. The plaintiff in suit/respondent in this appeal filed O.S.A.No.240 of 2022 challenging order dated 05.08.2022, which came to be allowed on 19.10.2022. The present appellants took the matter in further appeal before the Supreme Court in SLP (Civil) Diary No.13903 of 2023, which confirmed the order in OSA, by their judgment dated 04.08.2023.
4. It is thereafter that CMP No.4532 of 2025 has come to be filed seeking condonation of delay of 4487 days to challenge judgment and decree dated 07.07.2010.
5. We have heard the detailed submissions of Mr.R.Thiagarajan, learned counsel for the petitioners/appellants and Mr.V.P.Raman, learned counsel for the respondent.
6. The question that arises for our consideration is as to whether sufficient cause has been made out by the petitioners in seeking condonation of delay of 4487 days in filing the Original Side Appeal.
7. C.S.No.607 of 2008 had been instituted on 29.09.2006 and numbered on 02.07.2008 seeking recovery of a sum of Rs.68,49,602/- with interest at the rate of 36% per annum from date of plaint till date of realisation and for costs. The amount, as on date, is stated to be in excess of a sum of Rs.5.00 crores. The suit was decreed exparte on 07.07.2010.
8. Our attention is drawn to the fact that the cause list, at the time when the appellants were set exparte, had specifically noted that D1 and D2 had refused notice which ultimately had came to be affixed in their premises on 06.10.2009. Hence, the conduct of the appellants in the suit was one of non-cooperation.
9. An Execution Petition came to be filed by the respondent in E.P.No.108 of 2019 and notice was issued to the present appellants. At that juncture, they filed an application in A.No.1707 of 2022 seeking condonation of delay of 4245 days in setting aside the exparte decree dated 07.07.2010. The learned single Judge allowed that application on 05.08.2022 upon condition that the appellants deposit a sum of Rs.20.00 lakhs to the credit of the suit, which condition was instantly complied with.
10. In OSA No.240 of 2022 filed by the respondent challenging the order of the learned single Judge, the Division Bench has noted the specific defence that the suit had been barred by limitation.
11. The Division Bench also specifically records the position that, in the application filed seeking setting aside of the exparte decree, the appellants had conceded that they had knowledge of being set exparte in the suit on 24.06.2010 itself. Paragraph 3 of the affidavit filed in the application seeking to set aside the exparte decree reads as follows:
3. I have not received any notice issued in the suit. On 24.06.2010 I was informed by my counsel that a case filed by the respondent has appeared in the list in which it has been stated that D1 and D2 refused and affixed on 06.10.2009.'
12. This aligns with the cause list produced before us, wherein at page 60, the suit is listed as item 6 and there is an endorsement to the effect 'D1 & D2 refused & affixed on 06.10.2009'. Hence, the Division Bench concluded that there was no justification for such a substantial delay when the parties were well aware of having been set exparte on 24.06.2010 itself. Hence, the appeal was allowed by the Division Bench on 19.10.2022, which o
The right to appeal and the remedy to set aside an exparte decree are distinct; sufficient cause must be shown for condonation of delay in filing an appeal.
The right to appeal is substantive; however, significant delay must be justified with bona fide reasons, which were not established in this case.
The court emphasized that the discretion to condone delay in filing an appeal is not a matter of right and must be exercised judiciously, considering the merits of the case only when sufficient cause....
A party seeking condonation of delay must show sufficient cause; mere procedural deficiencies in prior judgments do not automatically justify delay.
Point of Law : “Sufficient cause” is decisive factor while condoning delay.
Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delin....
The court held that sufficient cause must be shown to condone delay under the Limitation Act, and mere negligence of legal counsel does not qualify as such.
(1) An order of Supreme Court, passed upon judicial consideration, attains finality unless set aside through appropriate appellate or review mechanisms.(2) Limitation - Delay should not be condoned m....
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