Sri Balajipapers International v. Aspexpaper Australia Pvt Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.08.2016

CORAM

THE HONOURABLE THIRU JUSTICE M. DURAISWAMY C.R.P.(NPD)Nos.2272 and 2273 of 2016 and CMP No.11758 of 2016 Sri Balaji Papers International Private Limited, rep by its Managing Director, S. Sanjeevi residing at 109/7, Sankaralingamopanar St., Rajapalayam-626 102 Having Office at No.17, Dhandapani Street, T. Nagar, Chennai - 600 017 ... Petitioner in both the revision petitions vs Aspex paper Australia Private Limited, NO.55, Market Street, Sydney Australia, rep by its General Power of Attorney, Fine Paper Source Private Limited, No.9, Baker Street,.

Chennai-1 ... Respondent in both the revision petitions Civil Revision Petitions filed under Section 115 of the Civil Procedure Code against the fair and final order dated 2.03.2015 in

I.A.Nos.13021 of 2012 and 13037 of 2013 in I.A.No.13021 of 2012 in O.S.No.8520 of 2009 on the file of XII Assistant City Civil Court, Chennai.

For Petitioner :

Mr.K. Krishnan for Mr.A. Sivaji For respondent :

Mr.S. Namasivayam COMMON ORDER Challenging the fair and final order passed in I.A.Nos.13021 of 2012 and 13037 of 2013 in O.S.No.8520 of 2009 on the file of XII Assistant Judge, City Civil Court, Chennai, the defendant has filed the above Civil Revision Petitions.

2.

The respondent/plaintiff filed a suit in O.S.No.8520/2009 for recovery of a sum of Rs.6,00,236/- together with interest. Since the defendant failed to appear before the trial court, the trial court passed an exparte decree on 16.04.2010. Thereafter, the defendant filed an application in I.A.No.13021 of 2012 to condone the delay of 828 days in filing the petition to set aside the exparte decree dated 16.4.2010.

3.

In the affidavit, filed in support of the petition, the defendant has stated that his father, who is the Director of the defendant Company, fell ill and therefore, the application to set aside the exparte decree, could not be filed in time. The affidavit was filed by the Managing Director of the Company.

4.

When the Managing Director of the Company was very much available to file the application, the reason given by the Managing Director, that his father, who is the Director of the Company fell ill and therefore, the application could not be filed in time, cannot be accepted. The defendant is a Private Limited Company, represented by the Managing Director.

5.

That apart, in the affidavit, the defendant has stated that the Director of the Company fell ill and therefore, the application could not be filed. Even the nature of the ailment was not stated in the affidavit, filed in support of the petition.

6.

In the absence of any specific averments stated in the affidavit, filed in support of the petition, the inordinate delay of 828 days in filing the petition to set aside the exparte decree, was rightly

rejected by the trial court.

7.

In the said application viz., I.A.No.13021 of 2012, the defendant also filed an application in I.A.No.13037 of 2013 to condone the delay of 150 days in filing the rejoinder affidavit in I.A.No.13021 of 2012. Even in the affidavit, filed in support of the petition, in I.A.No.13037 of 2013, the defendant has stated the very same reason, that has been stated in the petition in I.A.No.13021 of 2012. 8.

When the defendant Company is represented by its Managing Director, the illness of the Director of the Company has no relevance. Even the nature of the illness has not been stated in the affidavit filed in support of the petition.

9.

In the absence of sufficient cause, shown by the defendant, the delay cannot be condoned. The ratio laid down by the Hon'ble Supreme Court reported in 2015 (1) SCC 680 (H. Dohil Constructions Company Private Limited vs Nahar Exports Limited and another) squarely applies to the facts and circumstances of the present case. In these circumstances, I do not find any reason to interfere with the orders passed by the trial court.

The Civil Revision Petitions are devoid of merits and the same are dismissed. No costs. Consequently, connected CMP is closed. 10-08-2016 sr Index:no website:yes To The District Munsif Court, Jeyamkondam.

M. DURAISWAMY,J., sr CRP(NPD)Nos.2272 & 2273/2016 10-08-2016