Heard the learned counsel on both sides. This Revision has been directed against the order passed in I.A.No.782 of 2007 in O.S.No.39 of 2002 on the file of the Subordinate Judge, Kancheepuram. I.A.No.782 of 2007 was filed under Section 5 of the Limitation Act to condone the delay of 1714 days in preferring a petition under Order 9 Rule 13 of CPC.
2.The learned counsel for the revision petitioner would contend that there was no proper service of summons on the defendants in the suit. The summons sent through the Court was retuned by the Process Server as 'vacated and unserved' and the summons sent by post was returned by the postal department as 'left' and the substituted service ordered by the trial Court was published in one issue of Malai Malar in Chennai edition, but the revision petitioners were residing at the property mortgaged at the time of raising the loan.
3.The learned counsel for the respondent would contend that even as per the agreement clause-8, it is the duty of the revision petitioners / hirers to intimate to the respondent if there is any change of address. But the revision petitioners have failed to intimate the respondent about the change of address. Even in the Hire Proposal Form the address given for the revision petitioners is No.40, Nambiliar Street, Sowcarpet, Chennai-79, to which address he had taken summons through post and Court.
4.The grievance of the learned counsel for the revision petitioners is that while calculating the interest for the amount due, the respondent has calculated 30% interest which is contrary to Order 39 Rule 11 of CPC. In support of their contentions the ratio decidendi in 2002(7) SCC 531 (Basant Singh and another Vs. Roman Catholic Mission) was relied only the learned counsel for the respondent and the ratio decidendi in AIR 1977 MADRAS 252 (R.M.T.S.S.Dharanasekaran Vs. State Bank of India) was relied by the learned counsel for the revision petitioners. Under such circumstances, I am of the view that the point whether the interest for the amount due from the revision petitioners has been calculated properly or whether the same has been calculated, contrary to the provision Order 34 Rule 11 of CPC, is to be decided by the trial Court. I am of the view that an opportunity must be given to the revision petitioners, but on deposit of Rs.1 lakh to the credit of O.S.No.39 of 2002 on the file of the Court of Subordinate Judge, Kancheepuram.
5.In fine, the Revision is allowed with a condition that the revision petitioners shall deposit Rs.1 lakh to the credit of O.S.No.39 of 2002 on the file of the Court of Subordinate Judge, Kancheepuram, failing which the Revision shall deem to have been dismissed. On such deposit, the learned trial Judge shall restore O.S.No.39 of 2002 to his file and after giving an opportunity to the defendants to file their written statement in O.S.No.39 of 2002, shall dispose of the suit in accordance with law within three months thereafter. No costs. Connected Miscellaneous Petition is closed.
13.04.2009 Index :Yes/No Web :Yes/No ssv NOTE:- Issue Today (13.04.2009) Registry is directed to despatch the records immediately.
To, The Subordinate Judge, Kancheepuram.
A.C.ARUMUGAPERUMAL ADITYAN, J.
ssv C.R.P.(NPD).No.393 of 2009 and M.P.No.1 of 2009 13.04.2009