K S RAJENDHIRAN Vs. M R MURALIKRISHNAN

JUDGEMENT

(1.) The appellant has come forward with this appeal against the order dated 18.02.2010 dismissing his application No. 3447 of 2008 in C.S. No. 923 of 2002 which was filed for condoning the delay of 1281 days in setting aside the exparte decree dated 29.12.2004 passed in the suit.

(2.) According to the appellant, he, along with the the first respondent carried on partnership business for mining and quarrying granite blocks as per the memorandum of understanding entered into between them as early as on 06.06.1996. The partnership business was stopped on and from August 1996 due to misunderstanding between the partners. Thereafter, based on a complaint given by the first respondent herein to the police complaining non-payment of amount, the appellant was arrested. During his police custody, at the instigation of the respondents herein, the signatures of the appellant were obtained in blank papers and it was utilised by the respondents to file the suit in C.S. No. 923 of 2002 against the appellant. The appellant would further contend that he came to know about the exparte decree dated 29.12.2004 passed in the suit only when he returned from Andhra Pradesh to Chennai and found that the summons in respect of EP No. 113 of 2006 in C.S. No. 923 of 2002 in Proclamation case No.1 of 2007 were affixed on his houe at No.54, Gajapathy Street, Shenoy Nagar, Chennai 600 030 on 28.04.2008. Therefore, he came to know about the exparte decree dated 29.12.2004 passed in the suit only on 28.04.2008. As the suit itself was filed, based on a fabricated agreement dated 23.01.2001, for recovery of a sum of Rs.50,00,000/- together with interest at the rate of 24% per annum on Rs.24,00,000/-, in which the exparte decree dated 29.12.2004 was passed without serving summons on him, the exparte decree is liable to be set aside. Even though the plaint indicates the address as No.54, Gajapathy Street, Shenoy Nagar, Chennai, he was not regularly residing there. Even the substituted service ordered by the Court prior to granting the exparte decree was not a true and proper service. The suit summons have not been served nor the summons in the Execution Petition served on him. Since there is no proper compliance to the provisions contained in Order V Rule 2 of CPC, in respect of service of summons, he has filed the present application to set aside the exparte decree. As there was a delay caused in filing the application to set aside the exparte decree dated 29.12.2004, inasmuch as he came to know about the exparte decree only on 28.04.2008, the delay is justified and immediately on coming to know about the exparte decree on 28.04.2008, he filed the application for setting aside the exparte decree.

(3.) The first respondent vehemently resisted the application filed by the appellant on the ground that the appellant was not a business partner along with the first respondent and there is no partnership agreement between them. The appellant received Rs.17 lakhs by way of two cheques, Rs.2 lakhs in cash and another sum of Rs.5 lakhs in cash separately. Ultimately, an agreement was entered into between the appellant and the first respondent herein to that effect. After receiving Rs.24 lakhs from the first respondent, the appellant, instead of utilising it for his business needs spent the amount for his personal needs. In fact, the money was paid when the appellant was a tenant under the respondents herein and the appellant also agreed to pay the amount with interest. As the appellant did not repay the amount within six months as agreed, the agreement dated 23.01.2001 was executed, whereby the appellant agreed to pay the amount within six months. In spite of lapse of time, since the appellant has not come forward to pay the amount, the suit was filed. Originally the suit was filed along with an application for attachment and the summons in the said application were duly served on the appellant through court. On receipt of the summons, the appellant appeared before the Court by engaging a counsel and took time for filing counter on various dates. Subsequently, the counsel engaged by the appellant reported no instructions and only thereafter, the application was ordered exparte. Further, the notice was also taken by means of paper publication. Only thereafter, the suit was decreed exparte on 29.12.2004. Therefore, the appellant, having entered appearance through an advocate to contest the matter in so far as the application for attachment before judgment is concerned, it is not open for the appellant to contend that summons were not served on him and therefore the exparte order in the suit has to be set aside. Once the appellant entered appearance by engaging an advocate of his choice and also filed Vakalath, the Vakalath has to be construed as an authorisation to the advocate to contest the suit and it cannot be restricted only for defending the interlocutory application.