Madras High Court
And Having One Of Its Branches At vs Malayan Banking Berhad on 26 September, 2022
Author: R. Hemalatha
Bench: R. Hemalatha
C.R.P.No.1052 of 2020
and C.M.P.No.5747 & 5749 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.R.P.No.1052 of 2020
and
C.M.P.Nos.5747 & 5749 of 2020
The Hongkong and Shanghai Banking
Corporation Limited,
represented by its Authorized Signatory
Mrs.Parveen M.Althaf
Indian Corporate Office at 52/60,
Mahatma Gandhi Road Fort,
Mumbai - 400 001.
And having one of its branches at
"Srivari Gokul Towers",
Door No.108, Race Court Road,
Coimbatore - 641 018. ... Petitioner
..Vs..
Malayan Banking Berhad
At Level-8, Menara Hap Sang,
Jalan P Ramlee - 50250.
Kuala Lumpur, Malaysia ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of CPC against
the fair and decreetal order dated 18.11.2019 in I.A.No.2 of 2019 in
O.S.No.77 of 2015 on the file of the First Additional District Court,
Coimbatore.
https://www.mhc.tn.gov.in/judis
1/11
C.R.P.No.1052 of 2020
and C.M.P.No.5747 & 5749 of 2020
For Petitioner : Mr.V.Ayya Durai, Senior Counsel
for Mr.M.S.Murali for R&P Partners
For Respondent : Mr.R.Bharath Kumar
ORDER
The present Civil Revision Petition is filed against the orders dated 18.11.2019 in I.A.No.2 of 2019 in O.S.No.77 of 2015 on the file of the First Additional District Court, Coimbatore.
2. The revision petitioner is the defendant in O.S. No.77/2015. The respondent/plaintiff filed the suit for recovery of money from the defendant /revision petitioner (hereafter called the defendant) on the basis of two letters of credit bearing LC No. DC COI510750 dated 29.11.2011 and DC COI510766 dated 30.12.2011. The suit was filed under Order XXXVII Rule 1 & 2 CPC. Summons were served on the defendant but they did not appear before the Court and therefore, they were set ex parte and an ex parte decree was passed on 18.03.2016. Thereafter, the respondent/plaintiff (hereafter called the plaintiff) issued a legal notice on 24.03.2018 to the defendant demanding the latter to pay https://www.mhc.tn.gov.in/judis 2/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020 the amount due under the decree and the same was served on the defendant's Corporate Bank office at Chennai. The defendant sent a reply to the said legal notice denying their liability. Thereafter, the plaintiff filed E.P.No.15/2018 before the First Additional District Court, Coimbatore and the defendant did not enter appearance though he was served with notice and thereafter an ex parte order of attachment was passed by the Executing Court. Subsequently, the defendant filed E.A.No.3 of 2019 to set aside the ex parte order and after a lapse of almost three years (969 days), the defendant filed I.A.No.2 of 2019 in O.S.No.77 of 2015 under Section 5 of the Limitation Act to condone the delay of 969 days in filing the application to set aside the ex parte decree passed in O.S.No.77/2015 under Order IX Rule 13 CPC. The plaintiff filed a counter. After full contest, the learned First Additional District Judge dismissed the said application vide his orders dated 18.11.2019 on the ground that the defendant did not show sufficient cause for condoning the delay of 969 days and that the petition was filed only to prolong the suit. Aggrieved over the same, the present Civil Revision Petition is filed.
https://www.mhc.tn.gov.in/judis 3/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020
3. Heard Mr.V.Ayya Durai, learned counsel appearing for the revision petitioner/defendant and Mr.R.Bharath Kumar, learned counsel appearing for the respondent/plaintiff.
4. Mr.V.Ayya Durai, learned counsel appearing for the defendant contended that i. the suit was filed based on two letters of credit issued by the defendant for and on behalf of CRI Pumps Pvt. Ltd. to the respondent bank namely Malayan Banking Berhad. In fact CRI Pumps Pvt Ltd. filed a suit in O.S.No.122 of 2012 against the Malayan Banking Berhad (respondent herein), the Hongkong and Shanghai Banking Corporation Limited and the supplier, seeking injunction not to pay any money to the supplier as there were no shipment under the letter of credit and therefore the defendant declined to pay the amount due to the respondent bank. ii. The suit in O.S.No.122 of 2012 filed by CRI Pumps Pvt. Ltd., was decreed. As against this decree, A.S.No.47 of 2013 was filed by the plaintiff bank . Subsequently, the plaintiff filed the suit in O.S.No.77 of 2015 in order to save limitation alleging that the letter of credit is irrevocable and also an independent contract. According https://www.mhc.tn.gov.in/judis 4/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020 to him, there are arguable points in the suit and that the Courts while dealing with the application under Section 5 of the Limitation Act ought to have taken into consideration the arguable defence before the trial court.
iii. He also relied on the decision in "Ramesh Vs. Sadhasivamoorthy"
in "C.R.P(NPD).No.2887 of 2018" in this regard. He further placed reliance on the decision "Bharat Petroleum Corporation Ltd. Vs. C.S.Prakasa Rao" in "C.R.P(NPD) No.3888 of 2013" and contended that the condonation of delay is the discretion of the Court and such discretion is to be exercised if the delay is within certain limits. According to him, the length of delay is immaterial but the acceptability of explanation is material and in the instant case, the revision petitioner could not file the petition to set aside the ex parte decree on time because the notice served on them in the EP proceedings got misplaced and that it was not also brought to the notice of the head of the defendant bank. He would further contend that the trial court was not right in dismissing the application.
https://www.mhc.tn.gov.in/judis 5/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020
5. Per contra Mr.R.Bharath Kumar, learned counsel appearing for the respondent contended that though summons were served on the defendant (revision petitioner) in the suit in O.S.No.77of 2015, the defendant did not appear before the Court and after several adjournments an ex parte decree was passed on 18.03.2016. Thereafter, a legal notice was sent to the defendant demanding the money due under the decree and the notice was received by the revision petitioner on 11.04.2018 as is seen from the acknowledgment card dated 11.04.2018. The revision petitioner sent a reply to the legal notice and it was marked as Ex.B5 in the trial court. It is also his contention that in the Execution proceedings in E.P.No.15 of 2018, the revision petitioner was served with notice. However, they did not appear before the Court and ultimately an ex parte order of attachment was passed and only after a lapse of two months the defendant filed the application to set aside the ex parte order in execution proceedings and filed an application in I.A.No.2 of 2019 under Section 5 of the Limitation Act to condone the delay of 969 days in filing the application to set aside the ex parte decree under Order IX Rule 13 CPC. The trial court was right in holding that the petitioner did not show sufficient cause for condoning the delay of 969 days. https://www.mhc.tn.gov.in/judis 6/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020
6. At the outset it may be observed that the suit in O.S.No.77 of 2015 was filed for recovery of money due under two letters of credit dated 29.12.2011 and 30.12.2011 respectively. The suit was filed under Order XXXVII Rule 1 & 2 CPC and summons were served on the revision petitioner / defendant. As already observed they did not appear before the trial Court and was set ex parte . It is seen from the records that the suit was adjourned on several occasions and only on 18.03.2016 an ex parte decree was passed. On 24.03.2018, the respondent/decree holder issued a legal notice to the revision petitioner / judgment debtor calling upon him to comply with the decree and the said legal notice was served on the petitioner on 11.04.2018. Though the revision petitioner / judgment debtor sent a reply to the legal notice, they did not make good the payment and hence E.P.No.15 of 2018 was filed by the respondent / plaintiff. Despite issuance of notice, the petitioner did not appear before the Court and an ex parte order of attachment was passed. Thereafter, he filed a petition to set aside the ex parte orders passed in E.P.No.15 of 2018 and a petition to condone the delay of 969 days in filing the petition under Order IX Rule 13 CPC. Thus it is seen that the revision petitioner / defendant was aware of the entire proceedings right from the date of the https://www.mhc.tn.gov.in/judis 7/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020 summons issued to him and he did not appear before the Court deliberately. The contention of the learned counsel for the revision petitioner that though summons were received by defendant bank, the same was not brought to the notice of the head of the department, cannot be accepted. Moreover, the revision petitioner had issued a reply notice on 02.04.2018 to the respondent in response to the legal notice dated 24.03.2018 sent by the decree holder to the defendant calling upon him to comply with the decree. Therefore, even in the year 2018 the revision petitioner was in know of the ex parte decree passed in O.S.No.77 of 2015. However, he filed the petition under Section 5 of the Limitation Act only in the year 2019 and he has not shown sufficient cause for condoning the delay of 969 days.
7. The decision in "Ramesh Vs. Sadhasivamoorthy" (cited supra) would not apply to the facts of the present case because the said suit was filed for specific performance of the contract and an ex parte decree was passed in favour of the plaintiff. In such circumstances, considering the nature of the relief claimed by the plaintiff and the defendants the delay was condoned. In the instant case, the respondent https://www.mhc.tn.gov.in/judis 8/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020 has filed the suit under Order XXXVII Rule 1 & 2 CPC seeking for recovery of money based on two letters of credit which are irrevocable. It is common knowledge that a letter of credit is a letter from a bank guaranteeing buyer's (importer's) payment to a seller (exporter) will be received on time and for the correct amount. This is mostly used for the international transactions. It is often used as a facility and governed by Uniform Customs and Practice for Documentary Credits (UCPDC) formulated by the International Chamber of Commerce. The decision in "Bharat Petroleum Corporation Ltd. Vs. C.S.Prakasa Rao" (cited supra) would not also apply to the facts of the present case because the defendant was Bharat Petroleum Corporation Ltd., a public sector undertaking faced with an ex parte decree of eviction. In such circumstances, the delay was condoned.
8. As rightly observed by the trial court, the revision petitioner did not adduce sufficient cause for condoning the delay and therefore, the revision petition fails and is liable to be dismissed. https://www.mhc.tn.gov.in/judis 9/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020
9. In the result, i. the Civil Revision Petition is dismissed. No costs. Consequently connected miscellaneous petitions are closed. ii. The orders dated 18.11.2019 passed by the First Additional District Court, Coimbatore, in I.A.No.2 of 2019 in O.S.No.77 of 2015, is upheld.
26.09.2022 bga Index : Yes/No Speaking / Non-speaking order https://www.mhc.tn.gov.in/judis 10/11 C.R.P.No.1052 of 2020 and C.M.P.No.5747 & 5749 of 2020 R. HEMALATHA, J.
bga To
1.The First Additional District Court, Coimbatore.
2.The Section Officer, VR Section, High Court, Madras. C.R.P.No.1052 of 2020
and C.M.P.Nos.5747 & 5749 of 2020 26.09.2022 https://www.mhc.tn.gov.in/judis 11/11