IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION)

FRIDAY, THE 6TH DAY OF AUGUST 2021

THE MASTER

A. No.6438 of 2013

in

C.S. No.534 of 2012

C.S. No.534 of 2012:-

Ravikumar M. Doss (H.U.F.),

representated by their Karta, Ravikumar M.Doss,

No.56/129, Adam Shahib Street,

Royapuram, Chennai-600 013.

... Plaintiff

-Versus-

Sivasri Madhavan,

Adyar Annora, Flat No.B-7, 4th Floor,

Door No.68, Plot No.345, 4th Main Road,

Gandhi Nagar, Adyar, Chennai-600 020.

... Defendant

A. No.6438 of 2013:-

Sivasri Madhavan,

Adyar Annora, Flat No.B-7, 4th Floor,

Door No.68, Plot No.345, 4th Main Road,

Gandhi Nagar, Adyar, Chennai-600 020.

... Applicant/Defendant

-Versus-

Ravikumar M. Doss (H.U.F.),

rep. by their Karta, Ravikumar M.Doss,

No.56/129, Adam Shahib Street,

Royapuram, Chennai-600 013.

... Respondent/Plaintiff

A. No.6438 of 2013:-

Application praying that this Hon'ble Court be pleased to set aside the exparte

decree passed in the above suit on 19.11.2013.

This Application coming on this day before this court for hearing, the court

made the following order:-

This application is filed to set aside the exparte order passed against this

petitioner/defendant on 19.11.2013.

2. The applicant is the defendant in the suit and the respondent is the plaintiff.

The plaintiff/respondent filed this suit against the applicant/defendant for recovery of

money of sum of Rs.30,60,000/- and for further interest of Rs.12,97,880/- and for

further interest at the rate of 24 % p.a. for Rs.30,60,000/- from the date of the plaint

till the date of realization. The suit was filed as a summary suit. Since this

applicant/defendant did not file application for leave to defend within 10 days of

receipt of summons for Judgment, he was set exparte and exparte decree was passed

on 19.11.2013. Now this applicant/defendant has come forward with this application

to set aside the exparte decree passed on 19.11.2013.

3. The learned counsel for the applicant/defendant submitted that the

Applicant/defendant was not duly served with summons in this case. He used to go

out of station most of the days due to his business tours. On 22.04.2013, he came to

know that a court notice was affixed in his door and he immediately contacted his

previous counsel and entrusted him to proceed in the matter. His counsel told that he

was set exparte on 27.03.2013 and his counsel filed application to set aside the

exparte order on 23.04.2013. Thereafter, the applicant/defendant regularly contacted

his counsel till the month of August 2013, Thereafter there was no progress in the

suit. The applicant contacted the present counsel and obtained change of vakalath

from his previous counsel and engaged the present counsel on 22.11.2013. When the

present counsel filed vakalath and search memo, the applicant came to know that the

suit has been decreed on 19.11.2013. As per the provisions of order XXXVII Rule 3

of Civil Procedure Code, the Applicant ought to have filed an application for leave to

defend within 10 days from the date of service of summons for Judgment. The

previous counsel of the applicant omitted to follow the procedures. The applicant

was not properly advised by the previous counsel to apply for leave to defend. Since

leave to defend was not filed, a decree was passed against applicant on 19.11.2013.

Now, the applicant has filed the application for leave to defend. Hence this

application is filed to set aside the exparte decree passed against this petitioner on

19.11.2013.

4. The learned counsel appeared for the respondent/plaintiff submitted that all

the averments stated in the affidavit of the application is denied. The application filed

by the applicant is not maintainable either in law or in facts and to be dismissed in

limine. The suit is filed under summary procedure. The respondent/plaintiff counsel

caused a legal notice to the applicant/defendant to make payment