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Madras High CourtCRP/2198/2017dismissed

Nippon Express India Pvt.Ltd., v. M/S.Sharo Exports

2018-01-24Honourable Mr Justice D. Krishnakumar6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.01.2018

CORAM:

THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR C.R.P. (NPD) No.2198 of 2017 and C.M.P No.10495 of 2017 Nippon Express India Pvt. Ltd., rep. By its Director .. Petitioner Vs

1. M/s. Sharo Exports rep. By its Proprietrix Mrs. S. Sharmila NO.FC Jain Citadel Apartments Ratnavel Pandian Road GG Nagar, Nerkundram Chennai - 600 107.

2. Hapag Llyod India Pvt. Ltd., rep. By its Director Begum Ispahani Complex Old No,.44 New No.91 Armenian Street Chennai - 600 001.

3. Hapag Llyod Aktiengesekkchaft rep. By its Director Begum Ispahani Complex Ballindamm 25, 20095 Hamburg, Germany.

.. Respondents

PRAYER: Civil Revision Petition filed under Section 115 of Code of Civil Procedure, to set aside the order dated 28.03.2017 passed in CMP No. 45 of 2017 in A.S. (SR) No.49135 of 2016 on the file of Principal Judge, City Civil Court, Madras.

For Petitioner : Mr. K. Bijai Sundar For Respondents : Mr. K. Bala Ganesh for R1 for Genicon Associates R2 & R3 - given up

O R D E R

This revision petition arises against the order dated 28.03.2017 passed in CMP No. 45 of 2017 in A.S. (SR) No.49135 of 2016 on the file of Principal Judge, City Civil Court, Madras.

2. The learned counsel for the petitioners would submit that the 1st respondent herein, filed a suit in O.S. No.4745 of 2013 on the file of IV Assistant Judge, City Civil Court, Chennai. After hearing both the parties, the suit was decreed. Challenging the decree, the petitioners preferred an appeal suit before the Principal City Civil Court, Chennai, along with an application to condone the delay of 187 days in preferring the said appeal.

3. According to the petitioners, the judgement was pronounced on 03.02.2016. The petitioners were continuously trying to contact the counsel. Only on 03.10.2016, when they received the entire documents along with the certified copy of the judgment and decree, the petitioners came to know of the decree. Thereafter, the petitioners engaged another counsel and hence the petitioners could not file the appeal suit in time. But, the court below, without considering the aforesaid bonafide reasons has erroneously dismissed the said application. Challenging the same, the present revision petition is filed.

4. Per contra, the learned counsel for the respondent would submit that the petitioners have not given satisfactory reasons in the affidavit and hence the court below has rightly dismissed the applications.

5. Considered the submissions made by the learned counsel for the parties and perused the material available on record.

6. The petitioners have filed the petition to condone the delay of 187 days in preferring the appeal suit. The reasons stated in the affidavit by the petitioners is that they were aware of the decree only after receipt of the notice in the execution proceedings. In the affidavit, it is stated that the erstwhile counsel has not informed the petitioners about the judgment passed in the suit.

7. Considering the above submission of the learned counsel for the petitioners and in the light of the decision of the Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, a liberal, pragmatic, justice-oriented, non- pedantic approach has to be taken while dealing with an application for condonation of delay, the order passed by the court below is liable to be set aside. However, the delay can be compensated by imposing cost on the petitioners.

8. In fine, the order dated 28.03.2017 passed in CMP No. 45 of 2017 in A.S. (SR) No.49135 of 2016 by the Principal Judge, City Civil

Court, Madras is set aside, on condition that the petitioners shall pay a sum of Rs.10,000/- to the respondent/ decree holder, on or before 31.01.2018.

9. The Civil Revision Petition is allowed, on the above terms. Consequently, the connected Miscellaneous Petition is closed. No costs. Post on 02.02.2017, for reporting compliance. 24.01.2018 Index : Yes/ No [Issue order copy on 29.01.2018] avr To The Principal Judge, City Civil Court Chennai .

D. KRISHNAKUMAR J., avr C.R.P. (NPD) No.2198 of 2017 and C.M.P No.10495 of 2017 24.01.2018