Full Judgment Text
[NONREPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2708 OF 2022
M/s Jersey Developers (P) Limited & Ors. …Appellants
Versus
Canara Bank …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 23.04.2021 passed by the High
Court of Judicature at Madras in Civil Revision Petition
No.4427 of 2015 by which the High Court has dismissed the
Signature Not Verified
said revision application preferred by the appellants herein
Digitally signed by R
Natarajan
Date: 2022.04.13
16:58:55 IST
Reason:
in which the appellants challenged the order passed by the
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learned Trial Court dismissing the petition to set aside the
exparte decree, the appellants herein – original defendants
have preferred the present appeal.
2. The appellant no.1 is the company who availed the
loan facility from the respondent – Bank and appellant nos.
2 and 3 are the Directors who are staying along with their
family in United States of America (USA) for last 40 years.
The respondent Bank instituted suit being OS No.3749 of
2003 before the learned Trial Court for recovery of the
amount. The summons of the suit and the notices were sent
to the address at Chennai which remained closed as the
appellants herein original defendants are staying in USA.
The summons and the notices were returned ‘unclaimed’.
Therefore, the Court below ordered substituted service by
newspaper publication. Thereafter the suit proceeded ex
parte and an exparte decree came to be passed vide
judgment and decree dated 12.02.2004. The Bank
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subsequently approached the Debts Recovery Tribunal for
issuance of the recovery certificate. The DRT, Chennai
issued a notice dated 07.06.2013 in the name of the
appellants calling upon them to pay a sum of
Rs.47,21,320.53. The said notice was also sent to the
address at Chennai which property according to the
appellants was already sold in the year 2002. According to
the appellants when appellant no.2 visited India in the year
2014, he become aware of the recovery certificate on
29.03.2014 and the exparte decree. The appellants herein
original defendants therefore filed the application before the
learned Trial Court to set aside the exparte judgment and
decree dated 12.02.2004. The said application came to be
dismissed by the learned Trial Court. The revision
application against the order passed by the learned Trial
Court dismissing the application to set aside the exparte
judgment and decree has also been dismissed by the High
Court by the impugned judgment and order.
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2.1 At the time of hearing of the present appeal it was
stated at the Bar that pursuant to the order passed by the
High Court, the petitioners have already deposited 50% of
the decretal amount. This Court passed an order dated
26.11.2021 that on deposit of the balance 50% of the
decretal amount with the Registry of this Court, notice shall
be issued. It is reported that by now the petitioners have
deposited the entire decretal amount (50% with the High
Court and 50% with the Registry of this Court).
3. Having heard learned counsel for the respective parties
and considering the fact that summons/notices issued by
the learned Trial Court were returned ‘unclaimed’ as the
same were sent at the address at Chennai and the house
was closed as the appellants herein original defendants were
staying in USA and thereafter the said house was sold and
so as to give one additional opportunity to the defendants to
defend the suit and as by now entire decretal amount is
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deposited by the appellants to show their bonafides and
therefore the amount alleged to have been due and payable
to the Bank is secured, we are of the opinion that if the
appellants are given one additional opportunity to defend
the suit it will be in the fitness of things and meet the ends
of justice.
4. In view of the above and for the reasons stated above,
the present appeal succeeds. The impugned judgment and
order passed by the High Court as well as the order passed
by the learned Trial Court dated 17.03.2015 passed in I.A.
No.6778 of 2014 in OS No.3749 of 2003 dismissing the
application to set aside the exparte decree are hereby
quashed and set aside. The exparte judgment and decree
passed by the learned Trial Court in OS No.3749 of 2003 is
hereby quashed and set aside and the original suit is
ordered to be restored on the file of the learned Trial Court,
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which shall be decided and disposed of by the learned Trial
Court in accordance with law and on its own merits.
4.1 Now appellants – original defendants to appear before
the learned Trial Court either in person or through their
th
Advocate(s) on 10 May, 2022 and they shall file their
written statements within a period of four weeks from the
first appearance before the learned Trial Court.
4.2 Now so far as the amount already deposited by the
appellants herein (50% of the amount pursuant to the order
passed by the High Court and the balance 50% of the
decretal amount pursuant to the order passed by this Court)
is concerned, it will be open for the respondent – Bank
original plaintiff to withdraw the same and keep it in an
interest bearing fixed deposit which shall be dealt with
subject to the ultimate outcome of the suit. In case the
plaintiff succeeds in the suit and the decree is passed the
said amount shall be appropriated towards the decree and if
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the suit is dismissed the same shall be repaid to the
defendants subject to the further order to be passed by the
Appellate Court. The Bank shall retain the amount as
ordered hereinabove without prejudice to the rights and
contentions of the respective parties in the suit.
5. Present appeal is accordingly allowed to the aforesaid
extent. However, there shall be no order as to costs.
..…………………………….J.
[M.R. SHAH]
………………………………J.
[B.V. NAGARATHNA]
NEW DELHI;
APRIL 13, 2022
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