TMI Blog2019 (11) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be deprived of such a right, the Supreme Court held that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. An appeal under Section 96(2) CPC is a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed under Order IX Rule 13 CPC was dismissed. Whether the defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In case the court is satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 18% per annum. The appellant agreed to return the said amount within two months; but the appellant has not paid the amount. On the other hand, the appellant is said to have issued two post-dated cheques to the respondent, one for an amount of ₹ 25,00,000/- and another for an amount of ₹ 20,00,000/-. When the said cheques were presented for collection on 10.03.2015, the same were returned with the endorsement that payments stopped by the drawer . The respondent-plaintiff filed a civil suit being OS No.76 of 2015 before the Additional District Judge, Tiruchirappalli. The said suit was decreed ex-parte on 09.10.2015. 4. Order IX Rule 13 CPC Proceedings:- The appellant-defendant filed IA No.327 of 2016 in OS No.76 of 2015 under Section 5 of the Limitation Act to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the exparte decree. In the said application, the appellant has stated that summons was sent to the appellant s old address at Trichy and the same was returned unserved and the ex-parte decree was passed on 09.10.2015. It was averred in the said application that the appellant is residing in Chennai since Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has submitted that the appellant has shown sufficient cause for the delay in filing the first appeal and that the appellant has to be given an opportunity to contest the decree on merits. It was submitted that the appellant has adduced documentary evidence to show that he was not residing at the Trichy address where the substituted service was affected and while so, the High Court erred in dismissing the application for condonation of delay filed along with the first appeal. Contending that despite the fact that an application under Order IX Rule 13 CPC was dismissed, the first appeal under Section 96(2) CPC being a statutory right is still available, the learned counsel for the appellant placed reliance upon Bhivchandra Shankar More v. Balu Gangaram More and others (2019) 6 SCC 387. 7. Per contra, Mr. Jayanth Muthraj, learned Senior counsel for the respondent submitted that the appeal filed by the appellant was beyond the period of limitation and the delay was not satisfactorily explained. It was submitted that the earlier application for condonation of delay in filing the application for setting aside the exparte decree under Order IX Rule 13 CPC was not accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. (See Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.) . 38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr Chaudhari that the Explanation appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury (1982) 2 SCC 596, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed. 12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:- 36. A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under Order IX Rule 13 CPC. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC. 17. In the present case, the respondent has filed the Money Suit being OS No.76 of 2015 for recovery of ₹ 46,98,500/- together with interest and the said suit was decreed ex-parte on 09.10.2015. Execution petition being EP No.95 of 2016 was also filed for execution of the decree. As pointed out earlier, the appellant has filed application being IA No.327 of 2016 to condone the delay of 276 days in filing the application to set aside the ex-parte decree. In the said application, the appellant has stated that he has been residing at Chennai; whereas the notice was served at Trichy and therefore, he did not have knowledge about the filing of the said suit in OS No.76 of 2015 before the ADJ Court at Tiruchirappalli and the ex-parte decree was passed on 09.10.2015. The appellant has further averred that he came to know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for recovery of money. But to avail this opportunity, he must deposit the balance amount of ₹ 20,00,000/- as a condition precedent for condonation of delay. In these terms, the impugned judgment is accordingly liable to be set aside. 20. The delay of 546 days in filing the first appeal shall therefore be condoned with condition that the appellant should deposit ₹ 20,00,000/- before the trial court-Principal District Judge, Tiruchirappalli, to the credit of OS No.76 of 2015 on or before 28.02.2020, failing which, the application for condonation of delay shall stand dismissed. On such deposit of ₹ 20,00,000/- the same shall be invested in a nationalised bank for a period of six months with the provision of auto-renewal. The deposit of ₹ 20,00,000/- and also the earlier deposit of ₹ 25,00,000/- would be subject to the outcome of the appeal. On deposit of ₹ 20,00,000/-, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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