THE HONOURABLE MR v. Balaraman

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2007CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIC.R.P.PD.No.891 of 2006andC.M.P.Nos.1 & 2 of 20061.Ramdoss2.Lakshmi ammal... Petitioners/defendantsVs.Balaraman... Respondent/PlantiffPRAYER : Civil Revision Petition filed under Article 227 of theConstitution of India against the decretal order dated 13.04.2006 made inI.A.No.399 of 2005 in O.S.No.41 of 2005 on the file of the Sub Court,Arni, Tiruvannamalai District.For Petitioners : Mr.T.DhanyakumarFor Respondent: Mr.S.Narayanasamy- - - - -O R D E R The defendants are the revision petitioners and the revision is filedunder Article 227 of the Constitution of India to set aside the orderpassed in I.A.No.399 of 2005 in O.S.No.41 of 2005 dated 13.04.2006 on thefile of Sub-Court, Arni, Tiruvannamalai District. 2. The suit filed by the respondents for recovery of an amount ofRs.2,60,000/- due under promissory note. The defendants who are therevision petitioners have filed the written statement denying theexecution, apart from denying due consideration for the promissory note.The defendants were set exparte and an exparte decree was passed on07.11.2005. The defendants filed I.A.No.41 of 2005 under Order 9 Rule 13Code of Civil Procedure to set aside the exparte decree and the same wasfiled within 30 days from the date of the exparte decree. 3. The learned Trial Judge having found that the application to setaside exparte decree has been filed within the period of limitation,namely, 30 days and also having accepted the reason given by thedefendants in the I.A. that the defendants who are the petitioners in theI.A. that the defendants was affected by jaundice and in that circumstanceto give one more opportunity to the defendants, the said petition wasallowed, however, on condition that the defendants shall deposit an amount https://hcservices.ecourts.gov.in/hcservices/ of Rs.50,000/- in the court on or before 24.04.2006. It is as against theorder of the Trial Court in imposing the condition for deposit ofRs.50,000/- for allowing a petition to set aside the exparte decree, thedefendants have filed the present revision. 4. The main ground raised on behalf of the revision petitioners isthat when the application to set aside the exparte decree was filed withinthe prescribed time without delay, the imposition of the condition ofdeposit of Rs.50,000/-, especially in the circumstances that the firstpetitioner, namely, the husband is working as a Village AdministrativeOfficer earning less than Rs.5,000/- per month is a onerous condition. 5. The learned counsel for the petitioners would submit that when theamount of promissory note itself is Rs.1,50,000/-, imposing of a conditionto deposit an amount of Rs.50,000/- to set aside the exparte decree isonerous, especially in the circumstances that the petition to set asidethe exparte decree has been filed within the time stipulated under law. 6. The learned counsel for the petitioner would rely upon thejudgement of the Hon’ble Apex Court reported 2003(2) LW 83 (SC) and 2003CTC 724 to substantiate the contention that the direction to deposit partof the amount claimed is onerous and the court can only pass an order ofcost in such circumstances as a condition. 7. The learned counsel for the petitioner would also rely upon ajudgement of the Hon’ble Apex Court reported in AIR 2002 SC 1151 tosubstantiate the contention that the imposition of the condition todeposit Rs.50,000/- is unreasonable and harshly excessive. 8. On the other hand, Mr.S.Narayanasamy, learned counsel appearingfor the respondent would rely upon Order 9 Rule 13 Code of Civil Procedurewhich empowers the court to set aside the exparte decree "upon such terms as to cost, payment into court or otherwise asit thinks fit" and according to the learned counsel it means that it is not only the costbut also any other terms that can be imposed. To substantiate hiscontention, he would also rely upon the judgement of the Allahabad HighCourt reported in AIR 1997 Allahabad 276, stating that by imposing acondition of depositing a portion of the decree amount, such order doesnot warrant any interference, while exercising powers under Section 115 ofCode of Civil Procedure. 9. I have heard the learned counsel for the petitioner as also thelearned counsel for the respondent and perused the records. 10. Admittedly in this case, the petition to set aside the expartedecree has been filed in time and there was no delay and the suit is on apromissory note for recovery of an amount Rs.1,50,000/- towards principaland the remaining amount towards interest. The judgements referred to, on https://hcservices.ecourts.gov.in/hcservices/ the side of the petitioners to substantiate their contention that the saidcondition of deposit of part of decree amount is harsh, especially thejudgements reported in 2000(3) CTC 724 and 2003 (2) LW 83 (SC) are caseswherein an exparte order was passed against the defendants and it is toset aside the exparte order, applications filed under Order 9 Rule 7 Codeof Civil Procedure and it was in those circumstances, the decisions wererendered holding that direction to pay part of decree amount will beonerous. While construing a petition filed under Order 9 Rule 13 of Codeof Civil Procedure, which stands in a different footing, in the sense thatthe defendant is suffering a decree even though it is exparte in nature,which is executable, while it is not so in the case of an exparte order. 11. It is in these circumstances, it is relevant to consider thejudgement of the Allahabad High Court rendered in M/s.Rajhans KhandsariUdyog and another Vs. Canara bank, Kiratpur and others reported in 1997Allahabad 276 as cited by the learned counsel for the respondents. Thatwas the case where an application under Order 9 Rule 13 was filed in whicha condition was imposed to set aside the exparte decree directing paymentof a portion of the decretal amount. While dealing with the said orderthe Allahabad High Court exercising revisional powers under Section 115 ofCode of Civil Procedure has held that imposing such condition, cannot beheld to be beyond the jurisdiction of the court. The Allahabad High Courthas also relied upon the earlier judgement reported in AIR 1972 Allahabad166 apart from AIR 1933 Allahabad 601. The Allahabad High Court hasultimately held "7. Under Section 115 CPC the Court would interfere inexercising its power of revision only if there had been ajurisdictional errors as indicated in the clauses (a), (b) and(c) of sub-section (1). There was certainly a jurisdiction inthe Court below to impose a condition of payment in the Courtand it cannot be said that the Court had exercised ajurisdiction not vested in it by law."12. Even a reading of the judgement of the Hon’ble Apex Court reliedupon by the learned counsel for the petitioner rendered in V.K.Industriesand others Vs. M.P.Electricity Board, Rampure Jabalpur reported in AIR2002 SC 1151 shows that such powers on the part of the court in imposing acondition of depositing part of the decree amount to set aside expartedecree under Order 9 Rule 13 C.P.C. is very much within its powers. Thatwas the case were the suit filed for recovery of Rs.3,84,455.44 withfuture interest and an exparte decree was passed by the Court and thereafter when an application was filed under Order 9 Rule 13 of the CivilProcedure Code, there was a direction by the High Court against thedefendants to deposit an amount of Rs.2,00,000/- with the Trial Court andfurnish bank guarantee for the remaining amount claimed in the suit TheHon’ble Supreme Court while modifying the said order of the High Court andtaking into consideration that an amount of Rs.50,000/- was alreadydeposited in the court, has directed deposit of further amount ofRs.50,000/- holding that directing deposit of Rs.2,00,000/- and furnishingof bank guarantee for the remaining amount is onerous and harsh and https://hcservices.ecourts.gov.in/hcservices/ unreasonable in the facts and circumstances of the case even before thetrial of the suit on merit. The relevant portions of the judgement of theHon’ble Apex Court in this regard are as follows:"5. Ordinarily, a money decree is not stayed unconditionally andthe judgement debtor would be put on terms. Even so, suchconditions must be reasonable having regard to all relevantfactors. Although ex parte decree was passed against theappellants, once it is set aside on the ground of non-service ofsuit summons the money decree did not exist for execution. It isno doubt true that in restoring a case the Court may imposeconditions to deposit costs or the decretal amount or someportion thereof or to ask the defendant to give security but suchconditions should be reasonably and not harshly excessive. Inthe impugned order the appellants are put on terms to deposit asum of Rs.2,00,000/- and to furnish a bank guarantee for theremaining suit claim within a period of two months. In our viewthese terms are onerous, harsh and unreasonable in the facts andcircumstances of the case and that too even before the trial ofthe suit on merits. (the emphasis is mine)6. On 29.10.2001, the learned counsel for the appellants statedthat within two weeks, a sum of Rs.50,000/- shall be deposited inthe trial Court and notice was issued on that day. During thecourse of hearing the learned counsel informed that a sum ofRs.50,000/- is already deposited in the trial Court. 7. We are of the view that it would be just and appropriate todirect the appellants to deposit a further sum of Rs.50,000/- inthe trial court within a period of four weeks from today. Theterms to deposit Rs.2,00,000/- and to furnish a bank guaranteefor the remaining suit claim shall stand modified as indicatedabove. The impugned order shall remain undisturbed in all otherrespects."13. Therefore, a reading of the said judgement of the Hon’ble ApexCourt shows that the court while dealing with an application under Order 9Rule 13 to set aside the exparte decree, is empowered to impose acondition of directing to deposit a portion of the decree amount, providedsuch conditions should not be onerous, harsh and unreasonable. 14. Taking the same as a yardstick, when we approach the facts andcircumstances of the case, I have no hesitation to come to the conclusionthat the order of the Trial court need not be interfered on the ground ofwant of jurisdiction. The only other ground that has to be considered isas to whether the imposing of such condition is harsh and unreasonable. AsI have stated above the present suit is one of promissory note and thedefendants have suffered an exparte decree. Even though an applicationhas been filed to set aside the same within time, the claim of theplaintiff as it is seen in the suit is Rs.2,80,000/-. In suchcircumstances, directing the defendants to deposit an amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.50,000/- cannot be said to be very harsh or unreasonable or onerous inany event. 15. In view of the same, the revision fails and the same isdismissed. No Costs. Consequently, the connected C.M.Ps. are closed. nbjSd/-Assistant Registrar/true copy/Sub Assistant Registrar.To1. The Subordinate Judge, Arni, Tiruvannamalai District.+One cc to Mr. J.Dhanyakumar Advocate SR 6604+ One cc to Mr. S. Narayanasamy Advocate sR 6286TEJ (co)sg 8/2/07Order in C.R.P.PD.No.891 of 200603.02.2007