SRIMANTA SANKARDEV KALAKHETRA SOCIETY Vs. MUKTAS (M/S)

JUDGEMENT

(1.) By filing this application under Art. 227 of the Constitution of India, the petitioner which is a registered society engaged in cultural activities has challenged validity of order dated 16.10.2012 passed by the learned Civil Judge No.3, Kamrup in Misc.(J) Case No. 55 of 2010 arising out of Money Suit No. 138 of 2008. By this order, the learned Trial Court dismissed application of the defendant/ petitioner for condoning delay of 224 days in filing an application under Order 9, Rule 13 of the Code of Civil Procedure in respect of an ex-parte decree dated 15.03.2010 in this aforesaid suit.

(2.) The opposite party, as plaintiff, instituted Money Suit No. 138 of 2008 in the Court of learned Civil Judge No.3, Guwahati, praying for a decree of Rs.12,50,479.00 with pendente lite and final interest @ 18% per annum. It is the case of the plaintiff that pursuant to a tender process, defendant engaged the plaintiff to supply various food items as breakfast, lunch, dinner, tea, snacks, sweets etc. Although some payments were made from time to time but all entitlements of the plaintiff was not cleared which along with interests, damage and compensation became as high as Rs.12,50,476.00 and the same amount was claimed by a money decree. The learned Trial Court passed an ex parte decree on 04.09.2009 of the aforesaid amount with interest @ 6% per annum holding that in spite of service of summons, the defendant failed to appear and assure the claim of the plaintiff.

(3.) After the decree was put in execution in Money Execution No.2 of 2010 of the Court of leaned Civil Judge No.3,Kamrup, at Guwahati, the sole judgment debtor (petitioner herein) filed an application on 28.04.2010 under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside of the ex parte decree before the learned Court who has passed the decree stating that only after service of notice on 15.03.2010 of the Execution case, the defendant came to know about the decree and the suit wherein the decree was passed, that summon was not duly served on the defendant and thus it is a fit case for setting aside of the ex parte decree. This application was accompanied by another application under Sec. 5 of the Limitation Act, 1963 wherein the petitioner claimed to have come to know about the suit and the ex parte decree passed therein only after receipt of notice on 15.03.2010 of the Money Execution Case No.2 of 2010. The petitioner specifically denied to have received any summon in the main suit. It was claimed, therefore, that the delay of 7 months 14 days in filing the application under IX Rule 13 of the Code of Civil Procedure be condoned and the application be entertained by extending the period of limitation under Sec. 5 of the Limitation Act, 1963. The application for condonation of delay was registered as Misc.(J) Case No. 55 of 2010 and notice was issued. The plaintiff filed objection and denied the pleadings of the petitioner/ defendant.