9911796707
TMI Blog2011 (2) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05.4.2005. 2. Respondent/Plaintiff filed C.S.No.698 of 2001 for recovery of Rs. 13,94,815/- along with subsequent interest. In October 2001, Appellant engaged a counsel to represent their case and had also given the vakalat. For non-filing of written statement, the suit was decreed exparte on 05.04.2005. Appellant filed application to set aside the exparte decree along with A.No.4291 of 2010 to condone the delay of 1932 days in filing application to set aside the exparte decree. Application was filed on the ground that by the order dated 06.9.2001, Appellant company was declared as Sick company by the Board for Industrial and Financial Reconstruction [BIFR] and case has been registered under No.311 of 2001 and the said BIFR was pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree. Learned single Judge further held that once the Defendant had knowledge of the decree, Defendant ought to have taken steps to set aside the decree and the inordinate delay has not been satisfactorily explained. 5. Challenging the impugned order, Mr. V. Raghavachari, learned counsel for Appellant contended that in view of BIFR proceedings where by an order dated 06.9.2001, the Appellant company had been declared as Sick company and in view of bar under Sec.22 of SICA, no proceedings could continue before the Court and the Court has to await the proceedings and final orders before BIFR and the decree passed on 05.04.2005 is unsustainable. It was further contended that notwithstanding the long range of delay and in view of bar und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough, proceedings in BIFR has been averred in the affidavit, the learned single Judge did not advert to the same. We also do not propose to express any opinion on the proceedings said to be pending in BIFR and the effect of the same on the suit. 9. Point falling for consideration is whether the Appellant had notice of the decree and the delay has been satisfactorily explained. As pointed out earlier, on receipt of the suit notice, Appellant had engaged a counsel in October 2001. Since they have not filed the written statement, exparte decree came to be passed on 05.04.2005. In an application under Sec.5 of Limitation Act, Court has to see whether there is sufficient cause for the delay. 10. In the matter of condonation of delay, two impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigants to ignore the statutory provisions, which mandates that application has to be filed within a particular time. Liberal approach is also not a licence to encourage gross negligence, irresponsible and inactive attitude of the party. However, in every case of delay there can be some lapse on the part of the litigant. That alone is not enough to turn down his plea and to shut the door against him. 13. As pointed out earlier, in October 2001, Appellant had engaged the counsel to represent the case and had also filed vakalat. In the affidavit, Appellant has stated that since they engaged the counsel, they were under the bonafide belief that the company's rights were duly protected and that they had no knowledge of the decree being p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn down his plea. As held by the Supreme Court in 1999-1-L.W. 739 [N. Balakrishnan v. M. Krishnamurthy], if the explanation does not smack of malafides or it is not put forth as part of a dilatory strategy, Court must show utmost consideration to the suitor. 16. In our considered view, the learned single Judge did not keep in view the averments in the rejoinder filed by the Appellant. In any event, in view of BIFR proceedings, the effect of the decree passed has to be considered. We are of the view that even though the delay is a long range of delay, the same has been satisfactorily explained by the Appellant and the order of learned single Judge is liable to be interfered with. 17. In the result, the order of learned single Judge in A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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