FOTOLITE COLOUR LABS Vs. AVER FOTO PRINT SYSTEM

JUDGEMENT

(1.) Petitioner is the plaintiff in O.S.No.496 of 1990 on the file of the Principal Subordinate Judge, Visakhapatnam. The case of the petitioner is that the above suit was instituted against the respondents-defendants for recovery of an amount of Rs.2,80,271/- being the amount paid to the respondents-defendants and to their technicians for the supply of original Italian made Durst -502 High Speed Substractive Printer equipment and its installation at petitioner's colour laboratory at Visakhapatnam. Suit notices were directed to the respondents-defendants through Court as well as by registered post acknowledgement due. Though suit notices were served on the respondents-defendants, which were sent through RPAD, none appeared on their behalf on 27-2-1991, on which date the suit stood posted for their appearance. Therefore, the Court, satisfying itself on the service of notices, set the respondents-defendants ex parte on 27-2-1991 and posted the matter on 28-2-1991 for the evidence of the petitioner-plaintiff. Accordingly on 28-2-1991 on behalf of the petitioner-plaintiff, one of the partners was examined as PW1;Exs. A1 to A17 documents were marked and the suit was decreed as prayed for.

(2.) Pursuant to the judgment and decree dated 28-2-1991, the petitioner-firm got the decree transferred to the High Court of Bombay for execution, as the properties of the respondents-defendants were located within the territory of High Court of Bombay. Thereafter, the petitioner-plaintiff filed E.P.No. 63/92 on the file of the High Court of Bombay and pursuant to the said execution petition, the movable and immovable properties shown in the E.P. schedule were attached on 27-4-1992. On 27-5-1992 the respondents-defendants filed a petition before the Subordinate Judge's Court, Visakhapatnam seeking to set aside the ex parte decree dated 28-2-1991. Along with the petition filed under Order 9 Rule 13 CPC, I.A.No. 300/92 was filed under Section 5 of the Limitation Act seeking to condone the delay of 15 months in filling the petition to set aside the ex parte decree. On behalf of the petitioner-plaintiff, a counter was filed inter alia contending that though notices were served on the respondents-defendants, they failed to appear before the court and contest the suit; that they failed to disclose sufficient reasons which prevented them from approaching the court in time and that, therefore, the day-to-day delay was not properly explained. The only explanation made out by the respondents-defendants before the Court below was that they entrusted the matter to their staff and went abroad in connection with their business assignment and that it is only when they received notices in the E.P. that they realised about the suit being decreed against them.

(3.) On the basis of the pleadings, the Court below allowed the application for condonation of delay on condition of the respondents-defendants paying costs of Rs.500/-- to the petitioner-plaintiff. The decree and order dated 14-7-1992 in I.A.No. 300/92 is the subject-matter in this revision petition.