2013 (11) TMI 1804 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the ex-parte decree dated 21.2.2006 should be set aside.
2. Whether the delay in filing the application u/s 5 of the Limitation Act, 1963 should be condoned.

Summary:

Issue 1: Setting Aside the Ex-Parte Decree
The appellant challenged the order dated 8.8.2011, which dismissed his application under Order 9 Rule 13 of CPC for setting aside an ex-parte decree dated 21.2.2006. The appellant argued that he was not personally liable for the debts of respondent No. 2 and that the decree was collusive since respondent No. 1, a shareholder of respondent No. 2, did not contest the suit. The court noted that both the appellant and respondent No. 2 were served with summons, and the appellant admitted receiving them but did not appear in court. The court held that the appellant's reason for non-appearance, based on assurances from respondent No. 2, did not constitute "sufficient cause" under Order 9 Rule 13 of CPC. The court cited the Supreme Court's interpretation of "sufficient cause" in Parimal v. Veena and G.P. Srivastava v. R.K. Raizada, emphasizing that the appellant was negligent and lacked bona fide in pursuing the case. The court concluded that the appellant failed to show sufficient cause for non-appearance and upheld the learned Single Judge's decision.

Issue 2: Condonation of Delay
The appellant also filed an application u/s 5 of the Limitation Act, 1963, for condoning the delay in filing the application to set aside the ex-parte decree. The court noted that the appellant became aware of the decree on 25.9.2009 but did not act promptly. The learned Single Judge had already considered the delay and found no plausible explanation for it. The court agreed with this assessment and found no merit in the appellant's request for condonation of delay.

Conclusion:
The court dismissed the appeal and the application, finding no sufficient cause for setting aside the ex-parte decree or for condoning the delay. The appellant's negligence and lack of bona fide were highlighted as key reasons for the dismissal. The decision of the learned Single Judge was affirmed, and the appeal was dismissed with no order as to costs.