Madras High Court
Nepc India Ltd vs S.Gopakumar on 30 August, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/08/2012 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)(MD)No.1667 of 2012 and M.P.(MD)No.2 of 2012 1.NEPC India Ltd., No.36, Wallaja Road, Chennai-2. 2.Ravi Prakash Khemka, Chairman, NEPC India Ltd., No.36, Wallaja Road, Chennai-2. 3.Ramkumar Khemka, Vice Chairman, NEPC India Ltd., No.36, Wallaja Road, Chennai-2. 4.Thirupti Kumar Khemka, Managing Director, NEPC India Ltd., No.36, Wallaja Road, Chennai-2. 5.Ramesh Jain, Director, NEPC India Ltd., No.36, Wallaja Road, Chennai-2. ... Petitioners Vs. S.Gopakumar, Prop: Cape Electric Corporation, 2/116, Tirunelveli Road, Thirupathisaram Post, Agasteeswaram Taluk, Kanyakumari District. ... Respondent PRAYER Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure praying to set aside the fair and decreetal order dated 29.02.2012 in I.A.No.438 of 2011 in O.S.No.72 of 2005 on the file of the District Court, Kanyakumari at Nagercoil. !For Petitioners... Mr.R.Ramadurai For M/s.Shanmugha Associates ^For Respondent ... Mr.M.Suri ******* :ORDER
****** This Civil Revision Petition is directed against the order dated 29.02.2012 made in I.A.No.438 of 2011 in O.S.No.72 of 2005 on the file of the District Court, Kanyakumari at Nagercoil.
2. The petitioners are the defendants in the suit in O.S.No.72 of 2005 on the file of the learned District Judge, Kanyakumari at Nagercoil. On account of non-filing of written statement, the petitioners/defendants were called absent and set exparte on 16.07.2009. They filed an application to set aside the exparte decree along with an application under Section 5 of the Limitation Act to condone the delay of 750 days in filing the said application.
3. In the affidavit, inter alia, it is alleged that after the dismissal of I.A.No.125 of 2006 by the District Court, Nagercoil and after the dismissal of C.R.P.No.2394 of 2008 by this Court, the hearing dates of the suit and connected proceedings noted down by the petitioners were misplaced and as a result thereof, the suit came to be decreed. They came to know of the exparte decree only after the notice from the Execution Court in City Civil Court, Madras. Because of the fact that they could not note down the dates of hearing of the suit, the exparte decree came to be passed and as a result thereof, they could not file any application to set aside the exparte decree passed in the said suit and hence, the delay of 750 days in filing the application to set aside the exparte decree has occurred.
4. In the counter filed by the respondent/plaintiff, it is averred that since the case was pending from 13.02.2006 for filing written statement of the petitioners/defendants till 09.06.2009, the Court had no other option except to set the defendants exparte. Each and every day delay has to be explained. The petitioners, who are waiting for E.P. notice and after receiving the said notice, they have come to the Court with an application to condone the delay in filing the application to set aside the exparte decree. There is negligence and carelessness on the part of the petitioners/defendants in prosecuting the case. Only with an ulterior motive, to drag on the proceedings, the present petition has been filed. Hence, the application for condonation of delay has to be dismissed.
5. The learned District Judge, Kanyakumari at Nagercoil, after hearing both sides, has dismissed the application for condonation of delay by observing that the reasons stated in the affidavit for the delay of 750 days are vague and found not satisfactory and no sufficient cause has been shown by the petitioners/defendants for condonation of delay. Hence, the petitioners are before this Court with the present Civil Revision Petition.
6. The point for consideration is whether the delay of 750 days has been sufficiently explained?
7. The learned District Judge, in his order dated 29.02.2012 made in I.A.No.438 of 2011, has elaborately dealt with the earlier events, which occurred prior to the passing of exparte decree. The learned District Judge is of the opinion that the delay of 750 days in filing the application to set aside the exparte decree has not been satisfactorily explained. When the affidavit of the petitioners is carefully scrutinized, this Court does not find any valid reason for the delay of 750 days .
8. In this context, Mr.M.Suri, learned counsel appearing for the respondent placed reliance upon various decisions of the Hon'ble Supreme Court and also the decisions rendered by this Court. In Ramji Pandey v. Swaran Kali reported in AIR 2011 SC 489, the Supreme Court observed that the conduct of the appellants throughout lack due diligence and they have been pursuing the entire matter negligently. When the petitioners failed to show any sufficient cause for condoning the delay, there could be no scope for condoning the delay.
9. The learned counsel appearing for the respondent cites a decision of mine in Padma & others v. Standard Literature Company (P) Ltd. reported in 2010(2) LW 363, wherein, after following various judgments of the Hon'ble Supreme Court as well as this Court, I have reached a conclusion that the party on whom the burden of explaining the delay rest, shall show sufficient cause for the delay to the satisfaction of the Court and if any right accrues to other party by lapse of time, the delay could not be condoned so as to defeat such rights. It is profitable to refer to paragraph Nos.7 and 10 of the said judgment, which read as follows:
"7. Mr.B.Kumar, the learned Senior Counsel appearing for the petitioners/landlords would place reliance on the judgment of the Apex Court in 2008(5) CTC 663 (Pundlik Jalam Patil (D) by Lrs. v. Exe.Eng.Jalgaon Medium Project and another] in which Their Lordships have held as follows:
"12...................... It is true that the power to condone the delay rests with the Court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior Court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court. ................
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23. Statutes of limitation are sometimes described as 'statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh and others v. Santa Singh and others, 1973(2) SCC 705, has observed: "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches." in Motichand v. Munshi, 1969(2) SCR 824, this Court observed that this principle is based on the maxim "interest republicae ut sit finis litum', that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It needs to restatement at our hand that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
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10. In MANU/TN/0068/2009 [S.S.Jain Singh (Mambalam) Trust rep. by its Secretary Mr.J.Kalyan Chand v. Arulmighu Bashyakar Adichenna, Kesava Perumal Thirukoil, rep. by its Executive Officer, Arulmighu Kothandaramar Temple], this Court has extracted the ratio laid down by the Apex Court which is as follows:
"3. The learned counsel for the revision petitioner would contend that the petitioner shall not be allowed to suffer for no fault on him. In support of this contention the learned counsel for the revision petitioner would rely on a decision of this Court in MANU/TN/0287/2008 [Adhikesavan v. Kalavathi]. The learned counsel also relied on MANU/SC/0573/1998-1999-1-L.W.739 [N.Balakrishnan v. M.Krishnamurthy], wherein the ratio decidendi laid down by the Honourable Apex Court in a case of similar nature, runs as follows:
Rules of limitation are not meant to destroy the right parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
10. When the Court is not able to see any reasonable cause for condoning the delay, the party could not get the relief of condonation of delay.
11. The learned counsel for the respondent also cites the following decisions in support of his case:
(i) Subbulakshmi v. Punjab and Sind Bank reported in 2010(5) CTC 786;
(ii) Indian Oil Corporation Ltd. v. Sakuntala Ganapathy Rao reported in 1998(III) CTC 170;
(iii) S.D.Muthaiah Gowder v. C.Marimuthu reported in 2011(2) MWN (Civil) 129;
(iv) Jayaraman, G. v. Devarajan reported in 2007(2) CTC 643;
(v) Shanmugam v. Chokkalingam reported in 2009(5) CTC 48;
(vi) Manickam v. Sundarammal reported in 2011(1) MWN (Civil) 216; and
(vii) C.Raghupathy v. C.Govindan reported in 2009(1) CTC 319.
12. In view of the law laid down by the Hon'ble Apex Court, as followed by this Court in many decisions, it is for the petitioners to show sufficient cause for the delay, that is to say, they were prevented by reasonable cause in filing the application in time and if they failed in their attempt, they could not get any relief.
13. As discussed above, this Court could not see any reason in the affidavit filed in support of the petition for condoning the delay of 750 days in filing the application to set aside the exparte decree. Mere statement in the affidavit filed by the petitioners that they could not note down the dates of hearings of the suit is not a good ground for condonation of delay.
14. In view of the reasons stated above, this Court is of the view that the petitioners have been negligent in filing the application to set aside the exparte decree with an application for condonation of delay and that the petitioners have not properly explained sufficient reasons for condoning the delay and hence, no interference is called for in the order passed by the Court below and the order dated 29.02.2012 passed in I.A.No.438 of 2011 in O.S.No.72 of 2005 by the learned District Judge, Kanyakumari at Nagercoil is hereby confirmed. The Civil Revision Petition is devoid of merits and the same deserves dismissal at the hands of this Court.
15. In the result, the Civil Revision Petition is dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.
SML To The District Court, Kanyakumari at Nagercoil.