S.Mohan Kumar v. S Mahendra Kumar Jain

A.No.6043 of 2016 in CS.No.1068 of 2009 C.V.KARTHIKEYAN, J.

This application had been filed by the Plaintiff to condone the delay of 365 days in filing the application to set aside the order of dismissal for default, dated 28.9.2015 passed in CS.No.1068 of 2009.

2. The above suit had been filed for a direction against the Defendant to pay to the Plaintiff a sum of Rs.5 crores with interest at 25% p.a. and for costs.

3. The said suit had been filed on the basis of an alleged borrowal of a sum of Rs.5 crores as a short term loan by the Defendant from the Plaintiff on 26.12.2006 and alleged agreement to repay the same within a period of three months with interest at 24% p.a. It had been further stated that the Defendant had issued 10 post dated cheques all drawn on Bharat Overseas Bank, Chennai Main Branch, for Rs.17,50,000/- each and the cheques were returned dishonoured with an endorsement "funds insufficient". These borrowals were at the time of release of a Tamil Film called Renugunda. The Defendant had filed a written statement, denying the borrowal. It had been further stated that the Plaintiff in his name and in the name of the Hindu United Family had borrowed huge sums of money from the Defendant.

It had been stated that the cheques were issued in good faith. It had been stated that between both the parties there have been many financial transactions. There had also been earlier suit in CS.No.3191 of 2006 before the 11th Assistant Judge, City Civil Court, Chennai. The Defendant finally denied that he was not liable to the Plaintiff.

4. This court, on consideration of the pleadings, had also framed issues on 16.11.2010 and had directed the parties to let in oral evidence. Accordingly, the Plaintiff had examined PW.1 and marked Ex.P1 to Ex.P12. Thereafter, several occasions and adjournments for nearly two years were taken by the Defendant to cross examine PW.1. The cross examination was finally completed on 29.6.2012. Thereafter, the Defendant had entered into appearance and let in evidence as DW.1. DW.1 either did not grace the witness box or was not cross examined when he was present during the entire years of 2012 and 2013. The Defendant had marked Ex.D1 to D.49. Thereafter, Ex.D50 was marked after two years on 7.8.2015. Finally, on 22.9.2015, the Additional Master III had stated that both sides are not interested in conducting the case and posted the matter before this court. The matter was posted before this court on 25.9.2015 and again it was later posted only on 02.12.2016.

5. This application had been filed to condone the delay as stated above of 365 days in filing the application to restore the suit, which was dismissed for default on 28.9.2015.

6. The reasons stated in the affidavit filed in support of this application are that the Plaintiff had medical problems and more particularly, he was suffering from coronary angiogram coronary artery disease and consequently, he was not able to conduct the case diligently. It is seen from the records that the delay in conducting the suit is on behalf of both the Plaintiff and the Defendant. Now, DW.1 is in the witness box. He has to be cross examined by the Plaintiff. Having travelled so far from 2009 onwards, it will not be fair to non suit the Plaintiff on technical grounds. Consequently, this application is

allowed as prayed for, by condoning the delay of 365 days in filing the application to restore the suit, which was dismissed for default on 28.9.2015. 27.01.2017 Srcm

C.V.KARTHIKEYAN, J.

Srcm Pre Delivery Order in A.No.6043 of 2016 in CS.No.1068 of 2009 27.01.2017 http://www.judis.nic.in