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2015 (5) TMI 1107

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..... ellants ought to have been afforded the opportunity to contest the suits on merits. When the S.L.Ps came up for admission on 1.08.2013, this Court passed the conditional order that subject to deposit a sum of ₹ 50,00,000/- before the trial court, notice shall be issued to the respondents. In compliance with the order dated 1.08.2013, the appellants have deposited ₹ 50,00,000/- before the trial court. Since the appellants have satisfactorily explained the reasons for the delay and with a view to provide an opportunity to the appellants to contest the suit, the impugned order is liable to be set aside. Delay in filing the applications to set aside the ex- parte decrees is condoned and the ex-parte decrees passed are set aside a .....

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..... ondents filed the suit being O.S.No.3/2011 for recovery of the sum of ₹ 1,50,00,000/- with interest. The case was adjourned from time to time on various dates. On 16.06.2011, the appellants-defendants were set ex- parte in the suit. After recording evidence adduced by the respondents- plaintiffs on 5.07.2011, the said suit was decreed ex-parte by the Principal District Judge, Thanjavur. 4. Respondents have also filed another suit O.S. No.6 of 2011 for recovery of a sum of ₹ 10,00,000/- said to have been paid by them to the appellants by way of an advance towards the purchase of another property. The said suit was decreed ex-parte on 16.06.2011. The appellants have filed I.A. No.78 of 2012 to set aside the ex-parte decree alon .....

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..... filing application to set aside the ex-parte decrees and thereby dismissed the revisions which are under challenge in these appeals. 6. Learned counsel for the appellants contended that the direction to deposit the entire decreetal amount of ₹ 1,50,00,000/- in O.S. No.3 of 2011 and the decreetal amount of ₹ 10,00,000/- in O.S. No.6 of 2011 as a condition precedent to set aside the ex-parte decrees is onerous and unreasonable and prayed to set aside the impugned order. In support of his contention, learned Senior Counsel Mr. Brijender Chahar for the appellants placed reliance upon the judgment of this Court in V.K. Industries and Ors. vs. M.P. Electricity Board, Rampur, Jabalpur, (2002) 3 SCC 159. 7. Learned Senior Counsel .....

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..... want of bonafide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence. 9. While exercising the discretion for setting aside the ex-parte decrees or condoning the delay in filing the application to set aside the ex-parte decrees, the court is competent to direct the defendants to pay a portion of the decreetal amount or the cost. In Tea Auction Limited vs. Grace Hill Tea Industry And Anr., (2006) 12 SCC 104: (2006) 9 SCALE 223, this Court has held as under: 15. .A dis .....

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..... having been set aside by the High Court, we are inclined to sustain the order of the High Court but subject to certain modification. In our opinion the High Court was justified in setting aside the condition imposed by the trial court in its order which was too onerous, also vague, uncertain and suffering from want of clarity. The order of the High Court to the extent of setting aside the ex parte proceedings and directing the expeditious trial of the suit has to be sustained as it serves the ends of justice . The same view was reiterated in V.K. Industries case (supra). 11. In the present case, while the trial court has exercised the discretion to condone the delay in filing the applications to set aside the ex-parte decrees, in o .....

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