Order IX Rule 13 of Code of Civil Procedure - Case Law

N. Mohan vs R. Madhu

Bench:

Banumathi J

Issue:

The issue in this case is related to the appeal made in Supreme Court, as High Court refused to accept the decree claimed by the appellant.

Facts:

• The case is based on a loan given to the appellant/defendant by the plaintiff/respondent.
• The respondent borrowed a sum of Rs.45,00,000 for his business purposes from the appellant/defendant, who was a businessman holding tea and real estate businesses.
• The loan was given on the basis, that the appellant would pay with an interest of 18% per annum, the loan amount was to be returned within 2 months which was promised by the appellant.
• The appellant issued 2 post dated cheques, splitting the amounts into 2 parts, Rs.20,00,000 and Rs.25,00,000, but the cheques were returned with endorsement stating that the “payments stopped by the drawer” when given in bank.
• The respondent filed a case and was decreed ex-parte.
• The appellant further appealed stating that the summon was sent to his old address which was in Trichy, but he shifted to Chennai.
• Appellant used Section 5 of Limitation act in the court to accept his delay of 276 days in filing petition under Order IX Rule 13.
• The Additional district judge also dismissed the suit raised the appellant.
• Both High Court and Supreme Court dismissed the contention of the appellant and dismissed his claim.
• After the dismissal of SLP by Supreme Court, the appellant further filed first appeal being AS(MD) challenging the order passed by Additional District Judge of Tiruchirappalli.
• The appellant stated the same reason in this suit stating that the summon was sent to his old address and asking to accept his delay of filing his first appeal in 546 days, which the High Court denied and dismissed.
• As the judgment was not satisfactory, the appellant filed the appeal in Supreme Court.

Appellant's Contention:

The appellant contends that proper reason has been stated from their side for delay in filing the first appeal. The appellant has to be given his right to contest the decree on merits. The appellant also submitted his proof of change in address, showing that he had shifted to Chennai.

Respondent's Contention:

The respondent contents that the reason stated is not proper and the suit shall be dismissed. The Limitation period has concluded beyond which the appellant cannot file his appeal. The Respondent also mentioned the older suit SLP, which was dismissed by Trial Court, High Court and as well as Supreme Court. It was stated that the Appellant cannot keep on stressing the same reason as it was rejected by the earlier trials and proceedings.

Judgment:

The Supreme Court decreed the appeal filed by the Appellant and condoned his delay of 546 days in filing the First appeal.

"The impugned judgment passed by the Madurai Bench of Madras High Court in CMP(MD) No.6566 of 2017 in AS(MD) SR No. 27805 of 2017 is set aside and this appeal is allowed. The delay in filing the appeal is condoned. The appeal shall be taken on file and the High Court shall proceed with the same in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter.” said the Supreme Court of India.

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