IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.6779 OF 2019 (CPC) BETWEEN I.B.T. Media Pvt. Ltd., (India) No.2, 8th ‘A’ Main, Sampangi Rama Nagar, Bengaluru-560027.
Reresented by its Director Chandra Mohan Talari (By Sri. G.Manivannan, Advocate) AND Bala Murali Krishna S/o. Late Kalaya Muthur Seshadri Subramanyam Aged about 56 years, R/at No.2D202, Akme Harmony Apartments Ambalipura Bengaluru-560103.
(By Smt. Maitreyi Krishnan, Advocate) …Appellant …Respondent This MFA is filed under Order 43 Rule 1(d) of CPC, against the order dated 19.06.2019 passed on I.A.No.1 in Misc.No.450/2017 on the file of the LVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH.No.59), dismissing I.A.No.1 filed under Section 5 of the Limitation Act.
This MFA coming on for admission, this day, the Court delivered the following :
JUDGMENT Heard the appellant’s counsel and the respondent’s counsel at the time of admission.
2. This appeal is disposed of since the question involved is very simple. Appellant is the defendant in the suit O.S.No.5612/2016. The respondent being the plaintiff brought a suit to recover an amount of Rs.6,04,047/- along with interest. The appellant entered appearance and engaged an advocate, but he did not file written statement. The trial court decreed the suit. It is stated by the appellant that when the appellant took out execution, he came to know about the decree against him. The date of knowledge is stated to be 28.03.2017. He applied for certified copy of the judgment and decree and by the time he wanted to file a petition under Order 9 Rules 13, the courts were closed for summer vacation and therefore he presented the petition on 29.05.2017. He also made an application under Section 5 of the Limitation Act seeking condonation of delay. The trial court by passing the impugned order dismissed the application. Therefore this appeal.
3. The learned counsel for the appellant submits that while it was a fact that the appellant entered appearance in the suit, but he did not contest the suit because the respondent approached the appellant and told him that he would withdraw the suit. Under that impression the appellant did not contest the suit. But the respondent did not withdraw the suit and obtained the decree. It was only when the respondent put the decree into execution, the appellant became aware of the decree on 28.03.2017. After obtaining the certified copy of the judgment and decree, he wanted to file objection under Order 9 Rule 13 of CPC, but by that time the court was closed for summer vacation and he presented the petition after re-opening of the courts. Though there was no delay, the appellant made an application under Section 5 of the Limitation Act by way of abundant caution. The trial court erroneously dismissed the application without appreciating these circumstances. An opportunity may be given to the appellant to contest the suit.
4. The respondent’s counsel submits that the respondent did not give any assurance of withdrawing the suit and that he never met the appellant. The appellant has come up with a false reason. The trial court has rightly come to conclusion that delay can not be condoned.
5. After hearing both sides, it is to be stated that here is a case where the appellant denies its liability to make any payment to the respondent. The appellant states that it came to know about the decree on 28.03.2017. The application under Order 9 Rule 13 CPC was filed on 29.05.2017. So if the date of knowledge is taken into consideration to calculate the delay, as it was presented on 29.05.2017, there is a delay of 30 days from the date of expiry of 30 days from 28.03.2017. Having regard to the fact that the appellant is a company where the respondent was employed, and as the appellant denies its liability, the trial court should have adopted liberal approach to condone the delay. If the appellant is given an opportunity to contest the suit, the respondent may have to appear the before the court again, and for that reason cost may be imposed on the appellant. Having regard to these circumstances, I come to conclusion that this appeal can be allowed. Instead of remanding the case to the trial court to decide the petition on merits, suit can be ordered to be restored to save time.
i. Appeal is allowed.
ii. Order of the trial court on I.A.1 filed under Section 5 of the Limitation Act is set aside. Application stands allowed on cost of Rs.10,000/- payable by the appellant to the respondent. Cost shall be paid to the respondent in the trial court.
iii. The suit is restored.
iv. The parties shall appear before the trial court on 23rd September, 2019.
Sd/- JUDGE sd