IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 08.08.2008 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. VENUGOPAL O.S.A. .Nos.433 of 2003 and 18 of 2005 and CROSS OBJECTION No.8 of 2005 Southern Warehouse Company rep. by its Senior Manager(Purchase) Mr. K. Sundararajan ... Appellant in O.S.A.No.433/2003 and Respondent in O.S.A. No.18 of 2005 and Cross Objection No.8/2005 Vs. Wavin India Limited, rep. by its Cost and Budget Executive Mr. S. Ranganathan ... Respondent in O.S.A.No.433/2003 and Appellant in O.S.A. No.18 of 2005 and Cross Objection No.8/2005 Appeals filed u/o XXXVI Rule 11 of O.S Rules and Clause 15 of Letters Patent against the order dated 13.11.2003 passed in Application Nos.2979 and 2978 of 2003 respectively in C.S. Nos.388 of 1987 and 359 of 1986 respectively on the file of this Court. For Appellant : Mr. M. Sundar (O.S.A. No.433 of 2003) Mr. M.V. Karunakaran (O.S.A. No.18 of 2005 and Cross Objection No.8 of 2005) For Respondents : Mr. M.V. Karunakaran (O.S.A. No.433 of 20030 Mr. M. Sundar (O.S.A. No.18 of 2005 and Cross Objection No.8 of 2005) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment was delivered by M. CHOCKALINGAM,J) This judgment shall govern these two appeals and cross objection. 2. This Court heard the learned counsel appearing for either side. These appeals have arisen in the following manner:- (i) The appellant in O.S.A. No.433 of 2003 filed C.S. No.359 of 1986 for rendition of accounts or in the alternative payment of Rs.6,26,085.36 as damages and the respondent in O.S.A. No.433 of 2003 filed C.S. No.388 of 1987 for recovery of a sum of Rs.20,21,094.26 for the reasons set out in the plaint. In both the suits, written statements were filed by the respective parties. The issues were framed. Though the cases were taken up for trial on 7.1.1997, learned counsel appearing for the appellant, who was plaintiff in C.S. No.359 of 1986 and also defendant in C.S. No.388 of 1987 reported no instructions and hence, learned learned Single Judge has dismissed the suit in C.S. No.359 of 1986 on that day and posted C.S. No.388 of 1987 on 9.1.1997 for recording the evidence, setting the defendant ex parte. Accordingly, the evidence was recorded on behalf of plaintiff on 9.1.1997 and an ex parte decree was passed. (ii) While the matter stood thus, the decree that is obtained in C.S. No.388 of 1997 was put in execution in the year 2003. On service of notice, these two applications came to be filed. Application No.2978 of 2003 has been filed to condone the delay of 2342 days while making an application to set aside the order passed in C.S. No.359 of 1986, which was dismissed for non prosecution and also Application No.2979 of 2003 has been filed to condone the delay of 2340 days in filing an application to set aside the ex parte decree. Both these applications were contested by the respondent in O.S.A. No.433 of 2003. Both the applications were allowed and delay was condoned with some conditions. (iii) In so far as Application No.2878 of 2003 is concerned, there was a direction for payment of Rs.10,000/- towards cost to the learned counsel appearing for the defendant therein and in so far as Application No.2879 of 2003 is concerned, there was a direction for deposit of 50% of the decree amount and also payment of Rs.10,000/- towards cost to the learned counsel appearing for the plaintiff therein. Aggrieved over the said order, the plaintiff in C.S. No.359 of 1986, who is the defendant in C.S. No.388 of 1987 and plaintiff in C.S. No.338 of 1987 have brought forth these two appeals before this Court. 3. The only question that arises for consideration is https://hcservices.ecourts.gov.in/hcservices/ whether the applications to condone the delay of 2342 and 2340 days respectively can be allowed for the reasons set out in the applications? 4. Learned counsel appearing for the appellant in C.M.A. No.433 of 2003 submits that the appellant was given to understand that after framing of issues, it will take some time for the suit to be listed for trial and his presence in Court will not be required until then. The appellant's staff, who was handling the case bundle, actually attained superannuation and hence he could not be contacted. They are under the bona fide impression that the suits are pending for trial. After receipt of notice in execution proceedings, they came to know about the orders passed in both the suits. 5. Learned counsel appearing for the respondent in O.S.A. No.433 of 2003 submits that the delay in both the applications is inordinate and hence both the applications should not have been allowed. The affidavit is not filed by D.P. Devnath, but the same was filed by one K.Sundararajan. According to the appellant in O.S.A. No.433 of 2003, one Kesavan attained superannuation in 1991, but the applications were filed in 2003 only. Apart from that, once plaintiff's counsel reported no instructions, the Court has no other option except to dismiss the suit and accordingly the suit was dismissed on 7.1.97 in the presence of the counsel only. Hence, the appellant in O.S.A.No.433 of 2003 came to know about the dismissal of the suit after six years only is not correct. 6. The Court paid its anxious consideration on the submissions made by the learned counsel appearing for either side. It is not in controversy that the appellant in O.S.A. No.433 of 2003 filed C.S. No.359 of 1986 for rendition of accounts or in the alternative payment of Rs.6,26,085.36 as damages and the respondent in O.S.A. No.433 of 2003 filed C.S. No.388 of 1987 for recovery of a sum of Rs.20,21,094.26 for the reasons set out in the plaint. Both the suits are rested on the transaction between the parties. Concededly, issues are framed and the matter was posted for joint trial on 7.1.1997. 7. It could be seen from the available materials and also from the submissions made by the learned counsel appearing for both sides that the plaintiff in C.S. No.359 of 1986 and also defendant in C.S. No.388 of 1987 reported no instructions on 7.1.1997. Under such circumstances, the Court dismissed the suit in C.S. No.359 of 1986 for non prosecution. But, in so far as other case was concerned, the said defendant was set ex parte and the suit was posted for recording ex parte evidence on 9.1.1997 and accordingly, ex parte decree was passed on 9.1.1997. The orders passed in the two applications for condonation of delay of 2342 days and 2340 days respectively are the https://hcservices.ecourts.gov.in/hcservices/ subject matter of challenge in these appeals. 8. Needless to say that the delay that was occasioned was inordinate, ordinarily not excusable. The reasons adduced before the Trial Court as per the affidavit was that the subject suit was handled by the particular staff and he attained superannuation. The erstwhile counsel told him that the matter is ripe for trial. But, he did not inform the plaintiff and hence delay has occasioned. Thereafter, they also engaged another counsel. On the contrary, learned counsel appearing for the respondent submits that the plaintiff in C.S. No.359 of 1986 and also defendant in C.S. No.388 of 1987 had no knowledge about the trial is nothing but a false. The delay was inordinate. 9. At this juncture, it is pertinent to point out that even though the delay as mentioned above is inordinate and ordinarily not excusable, in the case of delay, whether to be condoned or not, it must be seen from the point of view of rendering of justice. Merely because the delay has occasioned, the Court should not dismiss the applications without condoning the delay. In the instant case, both are Companies. According to the plaintiff, the bundle was handed over to the particular staff, who was also retired. Apart from that the Company also changed the counsel, who has filed applications before this court. 10. Now, taking into consideration such circumstances, learned Single Judge had awarded cost of Rs.10,000/- payable to the learned counsel appearing for the opposite party. Further, in application No.2879 of 2003 is concerned, there was a direction for deposit of 50% of the suit claims. It is pertinent to point out that O.S.A. No.433 of 2003 has been brought forth by the plaintiff in C.S. No.359 of 1986 and defendant in C.S. No.388 of 1987. It has got to be remained to be stated that had the defendant in C.S. No.359 of 1986 and plaintiff in C.S. No.388 of 1987 is really aggrieved by the condonation of delay, he would have preferred an appeal, but, he has not chosen to do so. On the contrary the plaintiff in C.S. No.359 of 1986 and also defendant in C.S. No.388 of 1987 has filed O.S.A. No.433 of 2003. 11. At this juncture, the Court has to reiterate that the paramount interest in such matter is in the interest of justice. In the opinion of the Court, the direction to the appellant in O.S.A. No.433 of 2003 to deposit 50% of the suit claim apart from payment of cost seems to be unreasonable. It is also brought to the notice of the Court that at the time of initiation of proceedings, the Court granted interim stay on condition that the petitioner/appellant in O.S.A. No.433 of 2003 deposits 25% of the decree amount and it has been accordingly done. In so far as the cost of Rs.10,000/- imposed in each case is concerned, taking into consideration the inordinate delay, the cost is to be increased to Rs.5,000/- in each case. Since https://hcservices.ecourts.gov.in/hcservices/ it is stated by the learned counsel appearing for the appellant in O.S.A. No.433 of 2003 that the cost of Rs.10,000/- in each case has already been paid to the learned counsel for the respondent, additional cost of Rs.5,000/- in each case should be paid by the learned counsel appearing for the appellant in O.S.A. No.433 of 2003 to the learned counsel appearing for the respondent in O.S.A. No.433 of 2003 within a period of two weeks from today. 12. In so far as the order that was passed at the time of grant of interim stay directing the appellant to deposit 25% of the decree amount, which has already been made, will continue to be hold good. There is no impediment for the Trial court in considering the applications, one for setting aside the ex parte decree passed in C.S. No.359 of 1986 and the other for restoration of suit in C.S. No.388 of 1987 on merits and in accordance with law. 13. With the above observations, the Original Side Appeals and Cross Objection are disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To The Sub Assistant Registrar (Original Side) High Court, Madras. 2 CC To Mr.M. Sundar, Advocate, SR NO.43835 and 43836 2 CC To Mr.M.V. Karunakaran, Advocate, SR NO.43942 and 43943 O.S.A. .Nos.433 of 2003 and 18 of 2005 and CROSS OBJECTION No.8 of 2005 ksk(co) pmk/2.9.2008. https://hcservices.ecourts.gov.in/hcservices/