V THANUJA Vs. SHENOY NAGAR BENEFIT FUND LTD

JUDGEMENT

(1.) THE appellants herein are the applicants in A.No.4548 and 4549 of 2011 in C.S.No.70 of 2006 and defendants 1 and 2 in the said suit. THE appellants filed Application No.4548 of 2011 for setting aside the ex-parte order dated 26.8.2011 passed in the said suit against them and Application No.4549 of 2011 praying for condoning the delay of 1998 days in filling the written statement. THE said applications were strongly opposed by the first respondent/plaintiff by filing a common counter affidavit. THE learned single Judge, after taking into account the averments made in the affidavits filed in support of those applications and the common counter affidavit and the conduct of the appellants, had dismissed both the applications by a common order dated 26.9.2011. Challenging vires of the said order, the present appeals are filed.

(2.) THE first respondent/plaintiff filed a suit in C.S.No.70 of 2006 against the appellants and one Srinath praying for a judgment and decree for recovery of a sum of Rs.55,42,470.35 with interest @ 21% p.a. on Rs.14,00,000/- from the date of the plaint till the date of realisation and also for consequential reliefs.

(3.) THEREAFTER, the appellants/defendants 1 and 2 filed Application No.4548 of 2011 on 15.9.2011 praying for setting aside the ex-parte order and Application No.4549 of 2011 for condonation of delay of 1998 days in filing the written statement. In the affidavits filed in support of those applications, it is averred by the appellants herein that the truth and vires of documents relied on by the first respondent/plaintiff, are denied by them, as the documents were not executed by them and therefore they were under the impression that no written statement was required to be filed since no case has been made out as against them based on those documents. Later on their counsel informed them that an application has to be filed to send the documents for expert opinion and subsequently they filed Application No.70 of 2011 for referring certain documents for expert opinion and the said application was dismissed by this Court on 21.01.2011. It is further averred by the appellants/defendants 1 and 2 that thereafter the matter suddenly appeared in the cause list on 26.8.2011 for filing written statement and though their counsel appeared and sought time to file written statement, the same was rejected and the appellants/defendants 1 and 2 were set ex-parte on the same day. It is further averred by the appellants/applicants therein that since they were not in station, the said fact was not informed to them by their counsel and after coming to know the same, they filed applications for setting aside the ex-parte order and also for condoning the delay of 1998 days in filing the written statement.