IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH O.S.A.NO.177 OF 2011 1.S.N.Viswam 2.V.Vijayalakshmi ... Appellants Vs. S.Suresh ... Respondent Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated made in A.No.5359 of 2010 in C.S.No.447 of 2008 dated 02.12.2010 on the file of this Court. For Appellants : Mr.K.J.Parthasarathy For Respondents: Mr.V.Manohar JUDGMENT (Judgment of the Court was made by R.BANUMATHI,J) This appeal arises out of the order dated 02.12.2010 in A.No.5359 of 2010 in C.S.No.447 of 2008 whereby the learned Judge dismissed the application filed under Sec.5 of Limitation Act and declining to condone the delay of 315 days in filing the application to set aside the exparte decree. Defendants are the Appellants herein. 2. Brief facts are that Appellants are the owner of the land and building in Plot No.1, Door No.10, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-600 106 measuring 2397 sq. ft. consisting of Ground Floor, First Floor and Second Floor. 3. On 11.10.1994, Appellants borrowed a loan of Rs.6,00,000/- from Muthialpet Benefit Fund Limited under mortgage and created a registered mortgage in respect of the above said property infavour of Muthialpet Benefit Fund Limited by a deed of mortagage on 11.10.1994 under Doc.No.2798 of 1994. Appellants did not adhere to the repayment schedule and committed default in paying the loan. https://hcservices.ecourts.gov.in/hcservices/ In exercise of powers under Sec.69-A of Transfer of Property Act, the property was sold in public auction on 24.1.2008. In the said public auction, Respondent-S.Suresh became the highest bidder and sale deed dated 06.2.2008 was executed infavour of Respondent under Doc.No.376 of 2008 on the file of Sub Registrar Office, Anna Nagar, Chennai. 4. Alleging that the property is worth about Rs.1.75 crore; but the property has been sold for a paltry sum of Rs.17,10,000/-, Appellants have filed C.S.No.487 of 2008 seeking for:- (i) declaration that the alleged auction sale held on 24.1.2008 in respect of the suit property is illegal, invalid and void ab-initio and non-est in the eye of law and to set aside the sale deed dated 06.2.2008; (ii) permanent injunction restraining the Respondent from in any way alienating or encumbering the suit property; (iii) permanent injunction restraining Muthialpet Benefit Fund Limited from in manner interfering with the right and entitlement of Appellants from enjoying the suit property. The suit C.S.No.487 of 2008 is said to be pending. 5. In the mean while, on the basis of the sale deed dated 06.2.2008, Respondent herein had also filed C.S.No.447 of 2008 praying:- (i) to direct the Appellants to hand over vacant possession of the suit property; (ii) to pay damages at the rate of Rs.40,000/- per month from the date of plaint till the date of delivery of the suit property for illegal occupation and other reliefs. 6. In C.S.No.447 of 2008, Appellants were set exparte on 18.6.2009. Exparte evidence was taken on 23.6.2009 and C.S.No.447 of 2008 was decreed exparte on 17.9.2009. To execute the exparte decree, Respondent had also filed Execution Petition in E.P.No.3760 of 2010. In the said Execution Petition, notice was sent to the Appellants returnable by 19.8.2010 and Appellants were served with notice. 7. Thereafter on 26.8.2010, Appellants have filed application praying to set aside the exparte decree. That application was filed along with application in A.No.5359 of 2010 under Sec.5 of Limitation Act to condone the delay of 315 days. In the said application, the 2nd Appellant averred that her husband/1st Appellant was suffering from health problem for the last two years and has been continuously under medical treatment and also under continuous medical monitoring. In particular, he was suffering from Angina Dectoris which affected his brain and due to the same he was on several occasion admitted in the hospital. 2nd Appellant further averred that only due to 1st Appellant's health problem, they could not immediately file application to set aside the exparte decree. Stating that the suit filed by them in C.S.No.487 of 2008 is pending, Appellants averred that if the delay is not https://hcservices.ecourts.gov.in/hcservices/ condoned and exparte decree is not set aside, they would be subjected to serious prejudice. On those averments, Appellants prayed to condone the delay of 315 days in filing the application to set aside the exparte decree. 8. Resisting the application, Respondent filed counter stating that sufficient opportunity was available to the Appellants to pursue the suit C.S.No.447 of 2008 and the application has been filed only to thwart the execution and to gain over the situation. Respondent further averred that in the written statement filed in C.S.No.487 of 2008 in the month of June 2009 itself, Respondent has mentioned about the suit C.S.No.447 of 2008 and even then Appellants have not taken any steps to pursue C.S.No.447 of 2008. Respondent further averred that there was no banafide reason in the application seeking to condone the delay. 9. Upon consideration of rival contentions, learned Judge took the view that "rules of limitation" are not meant to destroy the right of parties and they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. Learned single Judge held that Court has to see whether dilatory strategy is being adopted by the party and the conduct of the parties here would castigate them in irresponsible litigant. Learned Judge further held that Appellants failed to respond to the notices of Muthialpet Benefit Fund Limited and the facts of the case in hand would only impute negligence and inaction on the part of the Appellants and Court cannot loose sight of the fact that valuable right accrued to the purchaser who invested huge amount in purchasing the property through public auction conducted by the Nidhi. Finding that there is no bonafide in the application, learned Judge dismissed the application. However, learned Judge observed that the observations made is only in respect of the application for condonation of delay and the trial Court may have to consider the other suit on merits in accordance with law. Being aggrieved by the dismissal of application, Appellants have filed this appeal. 10. We have heard Mr.K.J.Parthasarathy, learned counsel for Appellants. We have also heard Mr.V.Manohar, learned counsel appearing for the Respondent. 11. Mr.K.J.Parthasarathy, learned counsel for Appellants submitted that having regard to the pendency of the suit C.S.No.487 of 2008, learned Judge ought to have exercised the discretion infavour of the Appellant and condoned the delay. Drawing our attention to the address of the Defendants stated in C.S.No.487 of 2008, learned counsel for Appellants contended that Appellants are residing in the suit property viz., Door No.10, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-600 106 whereas in C.S.No.447 of 2008, the address of the Defendants had been stated as "No.13, Valluvar https://hcservices.ecourts.gov.in/hcservices/ street, Jaganathan Nagar, Arumbakkam, Chennai-106 and since wrong address was given, the summon was not served upon the Defendants. Learned counsel for Appellants submitted that immediately after the service of notice in the Execution Petition in August 2010, Appellants have filed application to set aside the exparte decree along with application to condone the delay of 315 days on 24.09.2010 and therefore, there was no inordinate delay in taking steps to set aside the exparte decree. It was further submitted that learned Judge did not keep in view the pendency of the earlier suit C.S.No.487 of 2008 and the learned Judge has not properly exercised his discretion. 12. Learned counsel for Respondent has submitted that even in the written statement filed in C.S.No.487 of 2008 in the month of June 2009 itself, Respondent has made a mention about the suit C.S.No.447 of 2008 and even then Appellants have not taken any steps to pursue the suit C.S.No.447 of 2008. Learned counsel for Respondent would further submit that when the Appellants have admitted the execution of mortgage deed and also the liability in the suit filed by them, absolutely, there is no need to re-open the suit C.S.No.447 of 2008 and try the matter afresh. Learned counsel would further submit that after the filing of Execution Petition, in the month of May, 2011, Respondent had also taken part of possession of the suit property and therefore valuable rights have accrued to the Respondent and if the exparte decree is set aside, Respondent would be subjected to great hardship. 13. We have considered the rival contentions and also considered the impugned order of the learned Judge. 14. It is settled law that "sufficient cause" must receive a liberal construction so as to advance substantial justice when no negligence, or inaction, or want of bonafide, is imputable to the applicant, the over-riding consideration being doing substantial justice. The Court should not lightly condone the delay in filing the application to set aside the exparte decree. Discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The true test is whether the applicants have acted with due diligence. 15. It is need to be stated that while considering the application for condonation of delay on the ground of "sufficient cause" under Sec.5 of Limitation Act, Court should adopt liberal approach. This principle is well settled and has been set out succinctly in (1987) 2 SCC 107 [Collector, Land Acquisition, Anantnag and others v. Katiji and others]. 16. In 1998 (2) CTC 533 : 1998 (7) SCC 123 [Balakrishnan v. M.Krishnamurthy], the Supreme Court held that "acceptability of explanation for the delay is the sole criterion and length of delay https://hcservices.ecourts.gov.in/hcservices/ is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactic, the Court should normally condone the delay. However, in such a case the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly". In that context, in the said decision, the Supreme Court observed as follows:- "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the First Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court”. 17. Applying the ratio of the above decision, in the present case, it is to be seen whether "sufficient cause" is shown for the delay of 315 days. In this regard, learned counsel for Appellants has drawn our attention to the address of the Defendants stated in C.S.No.447 of 2008. Address of the Defendants has been stated in C.S.No.447 of 2008 as:- No.13, Vallurvar street, Jaganathan Nagar, Arumbakkam, Chennai-106. Whereas in C.S.No.487 of 2008 filed by the Appellants, they are stated to be residing at Door No.10, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-600 106. We find no reason to reject the contention of Appellants that at the relevant point of time, they have been residing at Door No.10, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-600 106. Admittedly, they were not served with summons in C.S.No.447 of 2008 and therefore, they could not enter appearance in the said suit and file the written statement. Defendants were set exparte on 18.6.2009 and exparte evidence was taken on 23.6.2009 and on 17.09.2009 suit was decreed exparte. https://hcservices.ecourts.gov.in/hcservices/ 18. After the Execution Petition [E.P.No.3760 of 2010] filed, notice was sent to the Appellants returnable by 19.08.2010. In the Execution Petition, Appellants have entered appearance on 26.08.2010 and immediately, thereafter, they have filed an application to set aside the exparte decree along with application to condone the delay of 315 days on 24.09.2010. Learned counsel for Respondent has submitted that even after serving of notice in the Execution Petition, Appellants have not immediately come forward to file application to set aside the exparte decree. By perusal of the affidavit filed in A.No.5359 of 2010, Appellants have averred that 1st Appellant was suffering from severe health problem for the last two years and in particular he was suffering Angine Dectoris which affected his brain and due to the same he was on several occasions admitted in the hospital. It was also averred that 1st Appellant has lost the consciousness and due to his health problem, 2nd Appellant also suffered heart problems on many occasions and had undergone treatment on several occasions. Even though, Appellants have not filed any document to substantiate the health ground, we find no reason to reject the health ground alleged by the Appellants. 19. As rightly submitted by the learned counsel for Appellants suit C.S.No.487 of 2008 filed by the Appellants challenging the auction sale held on 24.1.2008 and seeking to set aside the sale deed dated 06.2.2008 is still pending. In the mean while, suit C.S.No.447 of 2008 is decreed exparte which would cause serious prejudice to the contentions of Appellants in C.S.No.487 of 2008. To render complete justice between the parties and to advance substantial justice, it is necessary that both the suits are to be heard and an opportunity has to be given to the Appellants to contest the suit C.S.No.447 of 2008 also. 20. Learned counsel for Respondent has submitted that Defendants had admitted the execution of mortgage and also the liability in the suit filed by them and therefore, absolutely, there is no necessity to re-open the case C.S.No.447 of 2008 and try the same afresh. Learned counsel would further submit that if the delay of 315 days in filing the application to set aside the exparte decree is condoned and the exparte decree in C.S.No.447 of 2008 is set aside, it would erode the faith of litigant public and frustrate the acts of the Respondent at the instance of the Appellants which lack bonafide. 21. Ofcourse, we do feel that exercise of powers under Sec.69- A of Transfer of Property Act is very limited. Since Appellants have already filed suit in C.S.No.487 of 2008 and the same is said to be pending, in all fairness, opportunity has to be given to the Appellant to contest the suit C.S.No.447 of 2008 also. As pointed out earlier, we are also satisfied with the reason stated for the https://hcservices.ecourts.gov.in/hcservices/ delay and Appellants have "sufficient cause" for the delay. Learned Judge was not right in dismissing the application and declining to condone the delay. Even though the learned Judge gave liberty to the parties to pursue the suit C.S.No.487 of 2008, in our considered view, learned Judge ought to have exercised the discretion infavour of Appellants in condoning the delay and the order of learned Judge cannot be sustained. 22. The suit property comprises of two residential portions and six shops. During the course of submissions, it was brought to our notice that in pursuant to the order passed in the Execution Petition in E.P.No.3760 of 2010, Respondent had already taken possession of two residential portions as well as four shops. It was stated that the co-tenants viz., (1) Murugan Dairy Milk, run by R.Madhavan; (2) Chennai Cake Word run by R.Velu; (3) A.Jayaseelan and (4) A.Govarthanan have attorned the tenancy to the Respondent. It is also stated that the other tenant viz., Arokia Milk has taken time for corresponding with their higher officials in getting instructions to attorn the tenancy to the Respondent. Since the Respondent is said to have already taken possession of two residential portions as well as four shops, we are not inclined to disturb that status quo. Learned counsel for Respondent has also stated that residential portions taken possession was also leased to some third parties. Since the Respondent is said to have taken possession suffice it to direct the Respondent to maintain accounts by keeping all the receipts and produce the same in the Court as and when required by the Court or by the Appellants. 23. In the result, the order of learned Judge in A.No.5359 of 2010 dated 02.12.2010 is set aside and this appeal is allowed. Application for condonation of delay of 315 days in filing the application to set aside the exparte decree in A.No.5359 9f 2010 is allowed. Consequently, connected M.P. is closed. No costs. We request the learned Judge to take up the application to set aside the exparte decree and consider the same in the light of the above observation and pass suitable orders to enable the Appellants to contest the suit C.S.No.447 of 2010. bbr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Sub Assistant Registrar, Original Side, High Court, Madras. + 1 cc to Mr. V. Manohar, Advocate SR No.37743 + 1 cc to Mr. K. J. Parthasarathy, Advocate SR No.37657 SV(CO) SR/7.7.2011 Judgment in O.S.A.No.177 of 2011 https://hcservices.ecourts.gov.in/hcservices/