IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.01.2017 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN C.R.P. (NPD) No.2966 of 2012 and M.P.No.1 of 2012
1. M/s.Shriram Transport Finance Co. Ltd., rep. by its Authorised Signatory No.80, 1st Floor, Marakanam Main Road, Tindivanam.
2. Indo Asian Finance Ltd., Chenai. .. Petitioners vs R.Indira .. Respondent Revision filed under Article 227 of Constitution of India against the judgment and decree dated 16.06.2012 passed in I.A.No.348 of 2012 in O.S.No.89 of 2011 on the file of the Principal District Munsif Court, Tindivanam.
For Petitioners : Ms.Harini for M/s.M.B.Gopalan For Respondent : M/s.P.Sankara Narayanan * * * * * ORDER Being aggrieved by the order in I.A.No.348 of 2012 in O.S.No.89 of 2011, dismissing the petition filed under Order 9, Rule 7 C.P.C., the petitioners have filed this Civil Revision Petition. The defendants are the petitioners herein.
2. The plaintiff/respondent has filed the suit, being O.S.No.89 of 2011, for permanent injunction restraining the defendants, their men, agents or any other persons claiming under them from interfering with the plaintiff's possession of the lorry bearing registration No.TN 28 L 3773 till the same is seized or possessed by the defendants by due process of law.
3. The petitioners have filed I.A.No.348 of 2012 under Order 9, Rule 7 CPC to set aside the ex parte order dated 09.12.2011 passed against them alleging that though their counsel informed the date of hearing to them and instructed to appear before the Court on 09.12.2011 with relevant papers, the petitioners had misunderstood the date of hearing as 19.12.2011 instead of 09.12.2011. It is also alleged that the deponent of the affidavit, who is looking after the case had been in head office at Chennai on 09.12.2011 and could not able to contact their counsel to instruct to file written statement. For non- filing of the written statement, the petitioners were called absent and set ex parte on 09.12.2011. Stating that the order dated 09.12.2011 setting the petitioners ex parte adversely affects the interest of the petitioners, they have filed petition to set aside the ex parte order dated 09.12.2011 and permit them to defend the suit.
4. Resisting the petition, the respondent filed counter stating that despite sufficient opportunity granted to the petitioners, they have not filed the written statement and they were set ex parte on 09.12.2011 and the suit was posted for evidence on 19.11.2012. Even thereafter, the petitioners did not prepare to file their written statement. It is stated that it is mandatory on the part of the Court not to grant more than 90 days for filing written statement. The respondent had filed her affidavit in chief and Exs.A1 to A40 were marked and the suit was at the verge of decreeing the suit.
5. Upon consideration of the rival submissions, the trial Court dismissed the petition filed by the petitioners. Aggrieved by the same, the petitioners have filed the present Civil Revision Petition.
6. I heard Ms.Harini for M/s.M.B.Gopalan, learned counsel for the petitioners and Mr.P.Sankara Narayanan, learned counsel for the respondent and also perused the materials available on record.
7. The learned counsel for the petitioners submitted that the trial Court dismissed the petition mainly on the ground that written statement was not filed and the trial Court had failed to appreciate that petitioners were invoking arbitration clause in the loan agreement and had filed petition under Section 8 of the Arbitration and Conciliation Act, 1996 vide I.A.SR.No.285 of 2012 and therefore, they cannot be compelled to file written statement. In view of the petition under Section 8 of the Arbitration and Conciliation Act, the trial Court ought to have entertained the petition to set aside the ex parte order and prayed for setting aside the ex parte of passed in the suit dated 9.12.2011.
8. Per contra, the learned counsel for the respondent submitted that despite several opportunities given to the petitioners, they failed to file the written statement and the reasoning given by the petitioners for non-filing of the written statement within the stipulated time was not convincing. He submitted that the trial Court has rightly dismissed the petition and the same need not be interfered with.
9. The point that arises for consideration is whether the trial Court was right in dismissing the petition to set aside the ex parte order dated 09.12.2011 filed by the petitioners.
10. The trial Court dismissed the petition mainly on the ground that the petitioners have not filed the written statement along with the petition. When the petitioners sought to set aside the ex parte order, they ought to have filed the petition along with the written statement. But in the case on hand the petitioners have failed to do so. On the other hand, the defendants pleaded that they have filed petition under Section 8 of the Arbitration and Conciliation Act.
11. Admittedly, the petitioners have not filed the written statement along with the petition to set aside the ex parte order. It is the bounden duty of the defendants in the suit to file the written statement within 90 days. Extension beyond 90 days being the exceptional cases.
12. The submission of the learned counsel for the petitioners that since the petitioners were invoking arbitration clause in the loan agreement and had filed petition under Section 8 of the Arbitration and Conciliation Act, they cannot be compelled to file the written statement, cannot be countenanced. The defendants ought to have filed the written statement along with the petition to set aside the ex parte order. However, failure to file the written statement within the period, cannot put against them considering the issue involved in the suit.
13. In the facts and circumstances of the case and also considering the fact that immediately after setting them ex parte, the petitioners have filed petition to set aside the ex parte and in order to give an opportunity to defend the suit and also having regard to the dispute involved in the suit, this Court is satisfied that the petitioners have satisfactorily explained the reason for their non-appearance. Thus, in the interest of justice, the petition filed by the petitioners to set aside the ex parte order is liable to be allowed. When the trial Court has not exercised its discretion to set aside the ex parte order, considering the facts and circumstances of the given case, the Revisional Court would interfere with the exercise of discretion. In my considered view, if the ex parte order is set aside, no prejudice would be caused to the respondent. On the other hand, if not set aside, much hardship would be caused to the petitioners, as they financed the petition for purchase of vehicle in question.
14. In the result, the Civil Revision Petition is allowed and the order of the trial Court in I.A.No.348 of 2012 in O.S.No.89 of 2011, dated 16.06.2012 is set aside. Considering the nature of dispute involved in the suit, this Court granted one month to the petitioners to file their written statement from the date of receipt of a copy of this order and thereafter, the trial Court is directed to dispose of the suit as expeditiously as possible. No costs. Consequently, connected miscellaneous petition is closed.
31.01.2017 Note:Issue order copy on 13.07.2018 vs Index : Yes Internet : Yes To The Principal District Munsif, Tindivanam.
M.V.MURALIDARAN, J.
vs C.R.P.(NPD) No.2966 of 2012 and M.P.No.1 of 2012 30.01.2017