RAJENDRA MILL LTD Vs. IOCEE EXPORTS LTD

JUDGEMENT

(1.) This Appeal arises out of the order of the learned single Judge in Application No.4291 of 2010 in C.S.No.698 of 2001 dated 19.11.2010 dismissing the application filed by the Appellant under Sec.5 of Limitation Act declining to condone the delay of 1932 days in filing application to set aside the exparte decree dated 05.4.2005.

(2.) Respondent/Plaintiff filed C.S.No.698 of 2001 for recovery of Rs.13,94,815/- along with subsequent interest. In October 2001, Appellant engaged a counsel to represent their case and had also given the vakalat. For non-filing of written statement, the suit was decreed exparte on 05.04.2005. Appellant filed application to set aside the exparte decree along with A.No.4291 of 2010 to condone the delay of 1932 days in filing application to set aside the exparte decree. Application was filed on the ground that by the order dated 06.9.2001, Appellant company was declared as Sick company by the Board for Industrial and Financial Reconstruction [BIFR] and case has been registered under No.311 of 2001 and the said BIFR was pending even in the year 2010. When the proceedings was pending before BIFR and under Sec.22 of Sick Industrial Companies (Special Provisions) Act, 1985 [for short SICA], the company being Sick, no proceedings could continue before the Court and the Court has to await the proceeding and final orders before BIFR and on that ground, Appellant prayed for condonation of delay of 1932 days in filing the application to set aside the exparte decree dated 05.04.2005.

(3.) Denying the averments, Respondent/Plaintiff filed counter stating that the long range of delay of 1932 days has not been satisfactorily explained. According to Respondent, on 31.7.2006, Respondent/Plaintiff sent a letter requesting the Appellant to settle their dues pursuant to the decree dated 05.4.2005 along with a copy of the decree and the said letter was acknowledged by one Kasi Viswanathan, an employee of the Appellant company on 02.8.2006, for which there had been no response . Therefore, according to Respondent even though Appellant had knowledge of the decree on 02.8.2006, they have not chosen to file application and therefore, the delay is not satisfactorily explained. Further according to Respondent, Appellant has not included the name of Respondent in the list of creditors filed before BIFR.