AJAY KUMAR GULECHA Vs. J. VIJAYAKUMAR AND ORS.

JUDGEMENT

(1.) The Plaintiff is before this Court challenging the Order passed in the Application filed by the First Respondent under Section 5 of the Limitation Act for condoning the delay of 1753 days in filing the Application to set aside the ex parte Decree dated 7.9.2006 passed against him in the Suit for Specific Performance of the Agreement dated 29.11.2004 entered into between the Petitioner and the First Respondent. The facts of the case are as follows:

(2.) Since the First Respondent failed to execute the Sale Deed, the Petitioner sent a Notice to the First Respondent on 9.6.2005 and thereafter filed the Suit for Specific Performance of Agreement dated 29.11.2004. In the said Suit, the First Respondent remained ex parte and an ex parte Decree was passed on 7.9.2006. Pursuant to the Order passed in E.P. No. 4 of 2007, a Sale Deed dated 27.11.2009 was executed through Court in favour of the Petitioner. At that stage, the First Respondent filed LA. No. 287 of 2011 on 26.7.2011 along with the Application to set aside ex parte Decree contending that there was a business transaction between him and the Petitioner and in that business transaction only for security the Power of Attorney was executed.

(3.) He would further submit that he also issued two cheques to the value of Rs. 26,00,000/- and Rs. 5,00,000/-, in all amounting to Rs. 31,00,000/-. The Power of Attorney holder, the Second Respondent is a close relative of the Petitioner and by collusion they created the Sale Agreement dated 29.11.2004 by virtue of the Power of Attorney dated 17.11.2004. That apart, the First Respondent revoked the Power of Attorney dated 17.11.2004 by a registered Revocation Deed dated 17.2.2005. When things stand so, suppressing all those facts, the Suit was filed and an ex parte Decree was obtained fraudulently. He is running a Jewellery shop at Sriperumbudur for the past several years. However, the ex parte Decree was fraudulently obtained by giving wrong address. When the First Respondent came to know about the ex parte Decree, he lodged a Criminal Complaint before the District Crime Branch and thereafter, he filed the Application under Section 5 of the Act along with the set aside Petition.