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M/s. Shruthi Fabrics(Firm) By its Managing Partner, T. Rajapandian Office at SITCO Industrial Estate & Others v/s Sri Sarvesh Cotton Mills Limited

    C.R.P.(PD) Nos.3135 & 3136 of 2008 and M.P.No.1 of 2008

    Decided On, 22 September 2008

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. RAJESWARAN

    For the Petitioners: V. Raghavachari, Advocate. For the Respondent: T.R. Rajaraman, Advocate.



Judgment Text

(PRAYER IN CRP.NO.3135 OF 2008 This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 27.08.2008 in I.A.No.823 of 2007 in O.S.No.213 of 2004 on the file of Principal District Judge, Erode.


PRAYER IN CRP.NO.3136 OF 2008 This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 27.08.2008 in I.A.No.825 of 2007 in O.S.No.213 of 2004 on the file of Principal District Judge, Erode.)


Common Order:


These two Civil Revision Petitions have been filed by the petitioners/defendants 1 and 2 and the petitioner/third defendant to set aside the order dated 27.08.2008 in I.A.Nos.823 of 2007 & I.A.No.825 of 2007 in O.S.No.213 of 2004 respectively on the file of Principal District Judge, Erode.


2. The defendants 1 and 2 in O.S.No.213 of 2004 and the third defendant in the same suit are the revision petitioners before this Court. The suit in O.S.No.213 of 2004 has been filed by the respondent/plaintiff for recovery of a sum of Rs.9,95,965.50 with 12% interest. Written statement has been filed by the 2nd defendant and the suit is being contested. On 08.03.2006, the petitioners/defendants were called absent and they were set exparte and an exparte decree was passed. Thereafter, an application in I.A.No.823 of 2001 was filed by the revision petitioner in CRP.No.3135 of 2008 to condone the delay of 586 days in filing the petition to set aside the exparte decree dated 08.03.2006. Similarly, the revision petitioner/third defendant filed I.A.No.825 of 2007 to condone the delay of 586 days in filing the application for setting aside the exparte decree. Both the applications were resisted by the respondent/plaintiff by filing a counter. The trial Court by an order dated 27.08.2008 allowed the applications by directing the petitioners/defendants to pay a sum of Rs.20,000/- in total, towards costs to the respondent/plaintiff and also directed the petitioners/defendants to deposit the decree amount of Rs.9,95,965.50 to the credit of the suit on or before 12.09.2008. Aggrieved by the same, the above civil revision petitions have been filed by the defendants in the suit.


3. I have heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondent/caveator and I have also gone through the documents filed in support of their submissions.


4. The suit in O.S.No.213 of 2004 has been filed by the respondent/plaintiff for recovery of a sum of Rs.9,95,965.50. Written statement has been filed by the 2nd defendant refuting the claim and the suit is being contested. While so, for the non appearance of the petitioners/defendants, the petitioners /defendants were set exparte on 08.03.2006 and on the very same day an exparte decree was passed. Immediately, the petitioners/defendants filed an application in I.A.Nos.823 & 825 of 2007 to condone the delay of 586 days in filing the petition to set aside the exparte decree dated 08.03.2006. On the objections raised by the respondent/plaintiff, the trial Court by order dated 27.08.2008 allowed the applications by directing the petitioners/defendants to pay a sum of Rs.20,000/- in total towards costs to the respondent/plaintiff and also directed the petitioners/defendants to deposit a decree amount of Rs.9,95,965.50 to be deposit to the credit of the suit in O.S.No.213 of 2004.


5. The learned counsel for the petitioners/defendants submits that the trial Court committed an illegality by imposing the above said condition which are too onerous at the time of considering the applications filed under Section 5 of the Limitation Act. He further adds that courts should adopt a liberal approach while considering such applications filed under Section 5 of the Limitation Act.


6. Per contra, the learned counsel appearing for the respondent/caveator submits that the petitioners/defendants have not given sufficient reasons for condoning the delay of 586 days in filing the petition to set aside the exparte decree dated 08.03.2006 and therefore the trial Court has rightly exercised its jurisdiction directing them to deposit the entire decree amount with costs.


7. After considering the arguments on both sides, and after going through the records, I am of the considered view that the trial Court has committed an illegality in imposing such onerous condition at the time of considering the applications filed under Section 5 of the Limitation Act. Therefore, I am inclined to interfere with the order passed by the trial Court by modifying the conditions.


8. The applications filed in I.A.No.823 of 2007 and 825 of 2007 are allowed on condition that all the defendants in the suit togethe

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r pay a sum of Rs.20,000/- towards cost to the plaintiff in the suit within a period of three weeks from the date of receipt of copy of this order. 9. Accordingly, the civil revision petitions are allowed in part in the above terms. No costs. Consequently, connected M.P.No.1 of 2008 is also closed. 10. It is made clear that if the cost of Rs.20,000/- is not paid within the time stipulated, both I.A.Nos.821 of 2007 and 825 of 2007 shall stand dismissed automatically without further reference to this Court.
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