N. MOHANversusR. MADHU

156                       [2019]
               SUPREME COURT     14 S.C.R. 156
                              REPORTS                      [2019] 14 S.C.R.


A                                 N. MOHAN
                                        v.
                                  R. MADHU
                         (Civil Appeal No. 8898 of 2019)
B                            NOVEMBER 21, 2019
                 [R. BANUMATHI, A. S. BOPANNA AND
                          HRISHIKESH ROY, JJ.]
             Code of Civil Procedure, 1908 – Or. IX, r.13 and s.96(2) –
C     Respondent-plaintiff case was that he lent appellant a sum of
      Rs.45,00,000/- and appellant-defendant failed to return the said
      amount – The suit was decreed ex-parte – Thereafter, appellant filed
      application u/s.5 of the Limitation Act to condone delay of 276 days
      in filing the petition u/Or. IX, r.13 CPC to set aside the ex-parte
      decree – The petition was dismissed by the Trial Court and revision
D
      against the same was dismissed by the High Court – The SLP
      preferred against the said order also came to be dismissed by the
      Supreme Court – After dismissal of SLP, the appellant filed first
      appeal along with application to condone the delay of 546 days –
      High Court dismissed the application for condonation of delay on
E     the ground that in the earlier proceedings u/Or. IX, r. 13 CPC, the
      appellant had stated the same reasons to set aside the ex-parte decree
      and same was not accepted by the Trial Court, High Court and the
      Supreme Court – On appeal, held: Right to file and appeal u/s.96(2)
      CPC is a statutory remedy – The right to appeal is not mere matter
      of procedure; but is a substantive right – Right to appeal u/s.96(2)
F
      CPC challenging the original decree passed ex-parte, being a
      statutory right, the defendant cannot be deprived of the statutory
      right thereby on the ground that the application filed u/or. IX, r. 13
      CPC was earlier dismissed – Whether the defendant has adopted
      dilatory tactics or where there is a lack of bona fide in pursuing the
G     remedy of appeal u/s. 96 (2) CPC, has to be considered depending
      upon facts and circumstances of each case – In the instant case,
      the appellant has shown his bonafide by depositing Rs. 25,00,000/
      - in the compliance with the orders of the Supreme Court –
      Considering the facts and circumstances of the case and in the
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                                       156
                    N. MOHAN v. R. MADHU                                157


interest of justice, appellant granted opportunity to put forth his     A
defence in the suit for recovery of money – To avail this
opportunity, appellant directed to deposit the balance amount of
Rs. 20,00,000/-, the delay of 546 days in filing the first appeal
condoned.
      Disposing the appeal, the Court                                   B
       HELD : 1. The defendant against whom an ex-parte decree
is passed, has two options. First option is to file an application
under Order IX Rule 13 CPC and second option is to file an
appeal under Section 96(2) CPC. The question to be considered
is whether the two options are to be exercised simultaneously or        C
can also be exercised consecutively. An unscrupulous litigant may,
of course, firstly file an application under Order IX Rule 13 CPC
and carry the matter up to the highest forum; thereafter may opt
to file appeal under Section 96(2) CPC challenging the ex-parte
decree. In that event, considerable time would be lost for the
plaintiff. The question falling for consideration is that whether       D
the remedies provided as simultaneous can be converted into
consecutive remedies. [Para 14] [165-G-H; 166-A-B]
      2. An appeal under Section 96(2) CPC is a statutory right,
the defendant cannot be deprived of the statutory right merely
on the ground that earlier, the application filed under Order IX        E
Rule 13 CPC was dismissed. Whether the defendant has adopted
dilatory tactics or where there is a lack of bona fide in pursuing
the remedy of appeal under Section 96(2) of the Code, has to be
considered depending upon the facts and circumstances of each
case. In case the court is satisfied that the defendant has adopted     F
dilatory tactics or where there is lack of bona fide, the court may
decline to condone the delay in filing the first appeal under Section
96(2) CPC. But where the defendant has been pursuing the
remedy bona fide under Order IX Rule 13 CPC, if the court refuses
to condone the delay in the time spent in pursuing the remedy
under Order IX Rule 13 CPC, the defendant would be deprived             G
of the statutory right of appeal. Whether the defendant has
adopted dilatory tactics or where there is lack of bona fide in
pursuing the remedy of appeal under Section 96(2) of the code

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158            SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     after the dismissal of the application under Order IX Rule 13
      CPC, is a question of fact and the same has to be considered
      depending upon the facts and circumstances of each case.
      [Para 15] [166-B-E]
            3. When the defendant filed appeal under Section 96(2) CPC
B     against an ex-parte decree and if the said appeal has been
      dismissed, thereafter, the defendant cannot file an application
      under Order IX Rule 13 CPC. This is because after the appeal
      filed under Section 96(2) of the Code has been dismissed, the
      original decree passed in the suit merges with the decree of the
      appellate court. Hence, after dismissal of the appeal filed under
C     Section 96(2) CPC, the appellant cannot fall back upon the remedy
      under Order IX Rule 13 CPC. [Para 16] [166-F-G]
             4. In the present case, the respondent has filed the Money
      Suit being OS No.76 of 2015 for recovery of Rs.46,98,500/-
      together with interest and the said suit was decreed ex-parte on
D     09.10.2015. Execution petition being EP No.95 of 2016 was also
      filed for execution of the decree. The appellant has filed application
      being IA No.327 of 2016 to condone the delay of 276 days in
      filing the application to set aside the ex-parte decree. In the said
      application, the appellant has stated that he has been residing at
E     Chennai; whereas the notice was served at Trichy and therefore,
      he did not have knowledge about the filing of the said suit in OS
      No.76 of 2015 before the ADJ Court at Tiruchirappalli and the
      ex-parte decree was passed on 09.10.2015. The appellant has
      further averred that he came to know about the ex-parte decree
      and the execution petition only at the time when he appeared in
F     CC No.240 of 2016 at Karur on 29.07.2016. The said application
      filed by the appellant seeking condonation of delay of 276 days in
      filing the application to set aside the ex-parte decree was
      dismissed by the order dated 04.01.2017. The revision and the
      SLP preferred by the appellant also came to be dismissed.
G     [Para 17] [166-G-H; 167-A-C]
             5. Thereafter, the appellant has preferred the first appeal
      with the application to condone the delay of 546 days in filing the
      first appeal. As pointed out earlier, there was a delay of 276 days

H
                    N. MOHAN v. R. MADHU                               159


in filing the application to set aside the ex-parte decree. Pursuing   A
the proceedings in the application filed under Order IX Rule 13
CPC has caused further delay of 270 days. Thus, there has been
a total delay of about 546 days in filing the first appeal. In the
application for condonation of delay, of course, the appellant has
raised the very same ground which was taken in the application
                                                                       B
filed under Section 5 of the Limitation Act to set aside the ex-
parte decree which was not accepted in the earlier proceedings.
[Para 18] [167-D-E]
       6. All that is to be pointed out is that the appellant would
have been well advised that if he had filed the first appeal
simultaneously along with the application under Order IX Rule          C
13 CPC. The appellant has however shown his bona fide by
depositing Rs. 25,00,000/- in compliance with the orders of this
Court dated 13.08.2018. The said amount of Rs. 25,00,000/- was
permitted to be withdrawn by the respondent-plaintiff.
Considering the facts and circumstances of the case and in the         D
interest of justice, in our view, the appellant deserves an
opportunity to put forth his defence in the suit for recovery of
money. But to avail this opportunity, he must deposit the balance
amount of Rs.20,00,000/- as a condition precedent for condonation
of delay. In these terms, the impugned judgment is accordingly
liable to be set aside. [Para 19] [167-G-H; 168-A-B]                   E

      Bhivchandra Shankar More v. Balu Gangaram More
      and others (2019) 6 SCC 387 ; Bhanu Kumar Jain v.
      Archana Kumar and another (2005) 1 SCC 787 : [2004]
      6 Suppl. SCR 1104 ; Neerja Realtors (P) Ltd. v. Janglu
      (Dead) Through Legal Representative (2018) 2 SCC                 F
      649 : [2018] 1 SCR 359 – relied on.
                      Case Law Reference
(2019) 6 SCC 387               relied on              Para 6
[2004] 6 Suppl. SCR 1104       relied on              Para 11          G
[2018] 1 SCR 359               relied on              Para 12



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160            SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8898
      of 2019.
           From the Judgment and Order dated 24.04.2018 of the Madurai
      Bench of Madras High Court in C.M.P. (MD) No. 6566 of 2017 in A.S.
      (MD) No. SR.27805 of 2017.
B           V. Singan, K. Kumar, S. Mahendran, Advs. for the Appellant.
            Jayanth Muthraj, Sr. Adv., C. K. Sasi, Nayantara Roy, Abdulla
      N., Advs. for the Respondent.
            The Judgment of the Court was delivered by
C           R. BANUMATHI, J.
            1. Leave granted.
             2. This appeal arises out of the impugned order dated 24.04.2018
      passed by the High Court of Madras at Madurai Bench in CMP(MD)
      No.6566 of 2017 in AS(MD) SR No. 27805 of 2017 in and by which the
D
      High Court has refused to condone the delay of 546 days in filing the
      first appeal against the judgment and decree passed in OS No.76 of
      2015 dated 09.10.2015.
            3. Brief facts which led to filing of this appeal are as follows:-
E            The appellant-defendant is a businessman doing business of tea
      and real estate. Case of the respondent-plaintiff is that on 10.01.2015,
      the appellant approached the respondent-plaintiff for financial assistance
      for a sum of Rs.45,00,000/- for the purpose of his business needs. The
      respondent lent him the sum of Rs.45,00,000/- and there was no
      documentation for the same. According to the respondent, it was agreed
F     that the said amount will be returned to the respondent with an interest
      of 18% per annum. The appellant agreed to return the said amount
      within two months; but the appellant has not paid the amount. On the
      other hand, the appellant is said to have issued two post-dated cheques
      to the respondent, one for an amount of Rs.25,00,000/- and another for
G     an amount of Rs.20,00,000/-. When the said cheques were presented
      for collection on 10.03.2015, the same were returned with the
      endorsement that “payments stopped by the drawer”. The respondent-
      plaintiff filed a civil suit being OS No.76 of 2015 before the Additional
      District Judge, Tiruchirappalli. The said suit was decreed ex-parte on
      09.10.2015.
H
                      N. MOHAN v. R. MADHU                                    161
                         [R. BANUMATHI, J.]

       4. Order IX Rule 13 CPC Proceedings:- The appellant-                   A
defendant filed IA No.327 of 2016 in OS No.76 of 2015 under Section
5 of the Limitation Act to condone the delay of 276 days in filing the
petition under Order IX Rule 13 CPC to set aside the ex-parte decree.
In the said application, the appellant has stated that summons was sent
to the appellant’s old address at Trichy and the same was returned
                                                                              B
unserved and the ex-parte decree was passed on 09.10.2015. It was
averred in the said application that the appellant is residing in Chennai
since January, 2014. The appellant has alleged that when he went to
attend a case in CC No.240/2016 at Karur Court on 29.07.2016, he
came to know about the passing of the ex-parte decree in OS No.76 of
2015. Thereafter, the appellant has taken steps to set aside the ex-          C
parte decree and filed application under Section 5 of the Limitation Act
- IA No.327 of 2016 to condone the delay of 276 days in filing the petition
under Order IX Rule 13 CPC to set aside the ex-parte decree. The said
petition was dismissed by the Additional District Judge by order dated
04.01.2017. The appellant has challenged the said order by filing revision
                                                                              D
being CRP (MD) No.257 of 2017 (NPD) before the High Court.
Rejecting the contention of the appellant that he has been residing in
Chennai, the learned Single Judge dismissed the said revision being CRP
(MD) No.257 of 2017 (NPD) by order dated 08.02.2017. The SLP(C)
No.9829 of 2017 preferred against the said order also came to be
dismissed by the Supreme Court by order dated 07.04.2017.                     E
       5. First appeal filed by the appellant in AS(MD) SR No.
27805 of 2017:- After the dismissal of the SLP by the Supreme Court,
the appellant-defendant has filed the first appeal being AS(MD) SR No.
27805 of 2017 challenging the decree passed in OS No.76 of 2015 dated
09.10.2015 along with application being CMP(MD) No.6566 of 2017               F
praying to condone the delay of 546 days in filing the appeal. In the said
application, the appellant raised the very same grounds that he is having
residence at Chennai and that the summons was not served on him and
that summons was taken to Trichy’s address and thereafter, ex-parte
decree was passed against him on 09.10.2015 and hence, prayed for
condonation of delay. The High Court dismissed the application for            G
condonation of delay on the ground that in the earlier proceedings under
Order IX Rule 13 CPC, the appellant has stated the same reasons to set
aside the ex-parte decree and that the reasons so stated by the appellant
was not accepted by the trial court, High Court and the Supreme Court.
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162             SUPREME COURT REPORTS                             [2019] 14 S.C.R.


A     Pointing out that the appellant has chosen belatedly to file the first appeal
      in time, the High Court has dismissed the application for condonation of
      delay of 546 days in filing the first appeal. Being aggrieved, the appellant
      has filed this appeal.
             6. Mr. V. Singan along with Mr. S. Mahendran, learned counsel
B     appearing for the appellant has submitted that the appellant has shown
      sufficient cause for the delay in filing the first appeal and that the appellant
      has to be given an opportunity to contest the decree on merits. It was
      submitted that the appellant has adduced documentary evidence to show
      that he was not residing at the Trichy address where the substituted
      service was affected and while so, the High Court erred in dismissing
C     the application for condonation of delay filed along with the first appeal.
      Contending that despite the fact that an application under Order IX Rule
      13 CPC was dismissed, the first appeal under Section 96(2) CPC being
      a statutory right is still available, the learned counsel for the appellant
      placed reliance upon Bhivchandra Shankar More v. Balu Gangaram
D     More and others (2019) 6 SCC 387.
              7. Per contra, Mr. Jayanth Muthraj, learned Senior counsel for
      the respondent submitted that the appeal filed by the appellant was beyond
      the period of limitation and the delay was not satisfactorily explained. It
      was submitted that the earlier application for condonation of delay in
E     filing the application for setting aside the ex-parte decree under Order
      IX Rule 13 CPC was not accepted by the trial court, High Court and the
      Supreme Court and the same has attained finality. It was submitted that
      the appellant cannot reagitate the very same question which has attained
      finality in the earlier proceedings.

F            8. We have carefully considered the submissions and perused the
      impugned judgment and materials on record. The following points arise
      for consideration in this appeal:-
             (i) After dismissal of the application filed under Order IX Rule
                 13 CPC for condonation of delay in filing the appeal, whether
G                the appeal filed under Section 96(2) CPC against the ex-parte
                 decree dated 09.10.2015 is maintainable?
             (ii) Whether the time spent in the proceedings to set aside the
                  ex-parte decree be taken as “sufficient cause” within the
                  meaning of Section 5 of the Limitation Act, 1908 so as to
                  condone the delay in preferring the first appeal?
H
                      N. MOHAN v. R. MADHU                                     163
                         [R. BANUMATHI, J.]

        9. When an ex-parte decree is passed, the defendant has two            A
remedies – (a) Either to file an application under Order IX Rule 13 CPC
to set aside the ex-parte decree by satisfying the court that the summons
was not served or if served, the defendant was prevented by “sufficient
cause” from appearing in the court when the suit was called for hearing;
(b) to file a regular appeal from the original decree to the first appellate
                                                                               B
court in terms of Section 96(2) CPC and challenge the ex-parte decree
on merits.
       10. Right to file an appeal under Section 96(2) CPC is a statutory
remedy. The right to appeal is not a mere matter of procedure; but is a
substantive right. Right to appeal under Section 96(2) CPC challenging
the original decree passed ex-parte, being a statutory right, the defendant    C
cannot be deprived of the statutory right merely on the ground that the
application filed under Order IX Rule 13 CPC was earlier dismissed.
        11. In Bhanu Kumar Jain v. Archana Kumar and another
(2005) 1 SCC 787, the Supreme Court considered the question whether
the first appeal filed under Section 96(2) of the Code was maintainable        D
despite the fact that an application under Order IX Rule 13 CPC was
dismissed. Observing that the right to appeal is a statutory right and that
the litigant cannot be deprived of such a right, the Supreme Court held
as under:-
      “36. … A right to question the correctness of the decree in a first      E
      appeal is a statutory right. Such a right shall not be curtailed nor
      shall any embargo be fixed thereupon unless the statute expressly
      or by necessary implication says so. (See Deepal Girishbhai
      Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385 and
      Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.)                        F
      …….
      38. The dichotomy, in our opinion, can be resolved by holding that
      whereas the defendant would not be permitted to raise a contention
      as regards the correctness or otherwise of the order posting the
      suit for ex parte hearing by the trial court and/or existence of a       G
      sufficient case for non-appearance of the defendant before it, it
      would be open to him to argue in the first appeal filed by him
      under Section 96(2) of the Code on the merits of the suit so as to
      enable him to contend that the materials brought on record by the
      plaintiffs were not sufficient for passing a decree in his favour or
                                                                               H
164            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A           the suit was otherwise not maintainable. Lack of jurisdiction of
            the court can also be a possible plea in such an appeal. We, however,
            agree with Mr Chaudhari that the “Explanation” appended to Order
            9 Rule 13 of the Code shall receive a strict construction as was
            held by this Court in Rani Choudhury (1982) 2 SCC 596, P.
            Kiran Kumar (2002) 5 SCC 161 and Shyam Sundar Sarma v.
B
            Pannalal Jaiswal (2005) 1 SCC 436.”
            12. After referring to Bhanu Kumar Jain and other judgments
      and observing that the defendant can take recourse to both proceedings
      – Order IX Rule 13 CPC as well as the appeal under Section 96(2)
      CPC, in Neerja Realtors (P) Ltd. v. Janglu (Dead) Through Legal
C     Representative (2018) 2 SCC 649, the Supreme Court held as under:-
            “17. A defendant against whom an ex parte decree is passed has
            two options: the first is to file an appeal. The second is to file an
            application under Order 9 Rule 13. The defendant can take
            recourse to both the proceedings simultaneously. The right of appeal
D           is not taken away by filing an application under Order 9 Rule 13.
            But if the appeal is dismissed as a result of which the ex parte
            decree merges with the order of the appellate court, a petition
            under Order 9 Rule 13 would not be maintainable. When an
            application under Order 9 Rule 13 is dismissed, the remedy of the
E           defendant is under Order 43 Rule 1. However, once such an appeal
            is dismissed, the same contention cannot be raised in a first appeal
            under Section 96. The three-Judge Bench decision in Bhanu
            Kumar Jain (2005) 1 SCC 787 has been followed by another
            Bench of three Judges in Rabindra Singh v. Financial Commr.,
            Cooperation (2008) 7 SCC 663, and by a two-Judge Bench in
F           Mahesh Yadav v. Rajeshwar Singh (2009) 2 SCC 205. ……..”
            [Underlining added]
             13. Considering the scope of Order IX Rule 13 CPC and the
      statutory right to appeal under Section 96(2) CPC, after referring to
      Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held
G     as under:-
            “11. It is to be pointed out that the scope of Order 9 Rule 13 CPC
            and Section 96(2) CPC are entirely different. In an application
            filed under Order 9 Rule 13 CPC, the Court has to see whether
            the summons were duly served or not or whether the defendant
H
                      N. MOHAN v. R. MADHU                                         165
                         [R. BANUMATHI, J.]

      was prevented by any “sufficient cause” from appearing when                  A
      the suit was called for hearing. If the Court is satisfied that the
      defendant was not duly served or that he was prevented for
      “sufficient cause”, the court may set aside the ex parte decree
      and restore the suit to its original position. In terms of Section
      96(2) CPC, the appeal lies from an original decree passed ex
                                                                                   B
      parte. In the regular appeal filed under Section 96(2) CPC, the
      appellate court has wide jurisdiction to go into the merits of the
      decree. The scope of enquiry under two provisions is entirely
      different. Merely because the defendant pursued the remedy under
      Order 9 Rule 13 CPC, it does not prohibit the defendant from
      filing the appeal if his application under Order 9 Rule 13 CPC is            C
      dismissed.”
      12. The right of appeal under Section 96(2) CPC is a statutory
      right and the defendant cannot be deprived of the statutory right
      of appeal merely on the ground that the application filed by him
      under Order IX Rule 13 CPC has been dismissed. In Bhanu                      D
      Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787,
      the Supreme Court considered the question whether the first appeal
      was maintainable despite the fact that an application under Order
      IX Rule 13 CPC was filed and dismissed. Observing that the
      right of appeal is a statutory right and that the litigant cannot be
      deprived of such right, in paras (36) and (38), it was held as under:-       E

          36. … A right to question the correctness of the decree in a
          first appeal is a statutory right. Such a right shall not be curtailed
          nor shall any embargo be fixed thereupon unless the statute
          expressly or by necessary implication says so. (See Deepal
          Girishbhai Soni v. United India Insurance Co. Ltd. (2004)                F
          5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC
          734.)
      …………..”
      14. The defendant against whom an ex-parte decree is passed,                 G
has two options. First option is to file an application under Order IX Rule
13 CPC and second option is to file an appeal under Section 96(2) CPC.
The question to be considered is whether the two options are to be
exercised simultaneously or can also be exercised consecutively. An
unscrupulous litigant may, of course, firstly file an application under Order
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166            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     IX Rule 13 CPC and carry the matter up to the highest forum; thereafter
      may opt to file appeal under Section 96(2) CPC challenging the ex-
      parte decree. In that event, considerable time would be lost for the
      plaintiff. The question falling for consideration is that whether the
      remedies provided as simultaneous can be converted into consecutive
      remedies.
B
             15. An appeal under Section 96(2) CPC is a statutory right, the
      defendant cannot be deprived of the statutory right merely on the ground
      that earlier, the application filed under Order IX Rule 13 CPC was
      dismissed. Whether the defendant has adopted dilatory tactics or where
      there is a lack of bona fide in pursuing the remedy of appeal under
C     Section 96(2) of the Code, has to be considered depending upon the
      facts and circumstances of each case. In case the court is satisfied that
      the defendant has adopted dilatory tactics or where there is lack of
      bona fide, the court may decline to condone the delay in filing the first
      appeal under Section 96(2) CPC. But where the defendant has been
D     pursuing the remedy bona fide under Order IX Rule 13 CPC, if the
      court refuses to condone the delay in the time spent in pursuing the
      remedy under Order IX Rule 13 CPC, the defendant would be deprived
      of the statutory right of appeal. Whether the defendant has adopted
      dilatory tactics or where there is lack of bona fide in pursuing the remedy
      of appeal under Section 96(2) of the code after the dismissal of the
E     application under Order IX Rule 13 CPC, is a question of fact and the
      same has to be considered depending upon the facts and circumstances
      of each case.
            16. When the defendant filed appeal under Section 96(2) CPC
      against an ex-parte decree and if the said appeal has been dismissed,
F     thereafter, the defendant cannot file an application under Order IX Rule
      13 CPC. This is because after the appeal filed under Section 96(2) of
      the Code has been dismissed, the original decree passed in the suit merges
      with the decree of the appellate court. Hence, after dismissal of the
      appeal filed under Section 96(2) CPC, the appellant cannot fall back
G     upon the remedy under Order IX Rule 13 CPC.
             17. In the present case, the respondent has filed the Money Suit
      being OS No.76 of 2015 for recovery of Rs.46,98,500/- together with
      interest and the said suit was decreed ex-parte on 09.10.2015. Execution
      petition being EP No.95 of 2016 was also filed for execution of the
H     decree. As pointed out earlier, the appellant has filed application being
                       N. MOHAN v. R. MADHU                                       167
                          [R. BANUMATHI, J.]

IA No.327 of 2016 to condone the delay of 276 days in filing the                  A
application to set aside the ex-parte decree. In the said application, the
appellant has stated that he has been residing at Chennai; whereas the
notice was served at Trichy and therefore, he did not have knowledge
about the filing of the said suit in OS No.76 of 2015 before the ADJ
Court at Tiruchirappalli and the ex-parte decree was passed on
                                                                                  B
09.10.2015. The appellant has further averred that he came to know
about the ex-parte decree and the execution petition only at the time
when he appeared in CC No.240 of 2016 at Karur on 29.07.2016. As
discussed earlier, the said application filed by the appellant seeking
condonation of delay of 276 days in filing the application to set aside the
ex-parte decree was dismissed by the order dated 04.01.2017. The                  C
revision and the SLP preferred by the appellant also came to be dismissed.
       18. Thereafter, the appellant has preferred the first appeal with
the application to condone the delay of 546 days in filing the first appeal.
As pointed out earlier, there was a delay of 276 days in filing the application
to set aside the ex-parte decree. Pursuing the proceedings in the                 D
application filed under Order IX Rule 13 CPC has caused further delay
of 270 days. Thus, there has been a total delay of about 546 days in
filing the first appeal. In the application for condonation of delay, of
course, the appellant has raised the very same ground which was taken
in the application filed under Section 5 of the Limitation Act to set aside
the ex-parte decree which was not accepted in the earlier proceedings.            E

       19. The learned counsel for the appellant-defendant has submitted
that a huge amount of Rs.45,00,000/- is said to have been paid by cash
which according to the learned counsel raises serious doubts about the
genuineness of such transaction. Per contra, the learned Senior counsel
for the respondent-plaintiff has submitted that lending of Rs.45,00,000/-         F
as hand loan is substantiated by issuance of two post-dated cheques in
favour of the respondent by the appellant – one for the sum of
Rs.25,00,000/- and another for the sum of Rs.20,00,000/-. We are not
inclined to go into the merits of the contention of the parties. All that is
to be pointed out is that the appellant would have been well advised that         G
if he had filed the first appeal simultaneously along with the application
under Order IX Rule 13 CPC. The appellant has however shown his
bona fide by depositing Rs.25,00,000/- in compliance with the orders of
this Court dated 13.08.2018. The said amount of Rs.25,00,000/- was
permitted to be withdrawn by the respondent-plaintiff. Considering the
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168                SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     facts and circumstances of the case and in the interest of justice, in our
      view, the appellant deserves an opportunity to put forth his defence in
      the suit for recovery of money. But to avail this opportunity, he must
      deposit the balance amount of Rs.20,00,000/- as a condition precedent
      for condonation of delay. In these terms, the impugned judgment is
      accordingly liable to be set aside.
B
              20. The delay of 546 days in filing the first appeal shall
      therefore be condoned with condition that the appellant should deposit
      Rs.20,00,000/- before the trial court-Principal District Judge,
      Tiruchirappalli, to the credit of OS No.76 of 2015 on or before 28.02.2020,
      failing which, the application for condonation of delay shall stand
C     dismissed. On such deposit of Rs.20,00,000/- the same shall be invested
      in a nationalised bank for a period of six months with the provision of
      auto-renewal. The deposit of Rs.20,00,000/- and also the earlier deposit
      of Rs.25,00,000/- would be subject to the outcome of the appeal. On
      deposit of Rs.20,00,000/-, the impugned judgment passed by the Madurai
D     Bench of Madras High Court in CMP(MD) No.6566 of 2017 in AS(MD)
      SR No. 27805 of 2017 is set aside and this appeal is allowed. The delay
      in filing the appeal is condoned. The appeal shall be taken on file and the
      High Court shall proceed with the same in accordance with law. We
      make it clear that we have not expressed any opinion on the merits of
      the matter. It is also made clear that the criminal complaints filed under
E     Section 138 of NI Act be proceeded on its own merits without being
      influenced by any of the views expressed by this Court or by the High
      Court.


      Ankit Gyan                                                Appeal disposed of.
F




G




H