@JUDGMENTTAG-ORDER
R. Banumathi, J.@mdashThese Civil Revision Petitions arise out of the orders dated 29.03.2004 and 06.04.2004 of the learned First Additional Subordinate Judge, Tiruchirappalli in I.A. No. 1049 of 2002 in O.S. No. 182 of 1999 and I.A. No. 306 of 2004 in O.S. No. 182 of 1999 respectively, allowing the Petitions filed u/s 5 of the Limitation Act to condone the delay in filing the Petition to set aside the exparte Decree on payment of Rs. 1000/- and setting aside the exparte Decree dated 16.08.1999. The Plaintiff is the Revision Petitioner. O.S. No. 182 of 1999:- The Plaintiff has filed the Suit, claiming Rs. 1,67,662/- from the Defendant. Case of the Plaintiff is that he was appointed as the Sales Representative of the Defendant Company. With effect from 01.07.1994, he was promoted to the post of Area Sales Executive with salary of Rs. 5010/- per month. Later, under the Scheme, the plaintiff was offered the Distributorship for Trichirappalli area on the assurance that the Plaintiffs Income would be protected by the Defendant. With reluctance, the Plaintiff accepted the offer by giving a Written Offer dated 07.11.1995. The Defendant - Wilkinson Sword (India) Limited (hereinafter referred to as "Wilkinson Ltd") has not performed its obligation in proper supply of the products. From May 1997, no supply has been provided as per the Agreement. As a result of the Defendant''s noncompliance of the terms of the Appointment, the Plaintiff had lost his Income and has suffered loss. The Defendant is bound to pay to the Plaintiff Subsidy and other amounts as per the Agreement dated 08.12.1995. Hence, after issuing pre-Suit Notice, the Suit has been filed for Recovery of Rs. 1,67,662/-.
2. In the said Suit, Defendant - Wilkinson Ltd., has been set exparte on 16.08.1999. In the meantime, the Defendant - Wilkinson Ltd., was amalgamated with Gillette India Limited by the order of the Company Court at New Delhi on 19.10.2000 in C.P. No. 252 and 253 of 2000. Though the Plaintiff has obtained an exparte Decree as early as on 16.08.1999, the Decree in O.S. No. 182 of 1999 was transmitted to the Executing Court at Madras in the year 2002. The Execution Notice has been served upon the Gillette India Limited on 01.07.2002.
3. I.A. No. 1049 of 2002: - Immediately after receiving the Notice, Gillette India Limited has filed this Application u/s 5 of the Limitation Act to condone the delay of 1664 days in filing the Petition to set aside the exparte Decree. In the supporting Affidavit, it has been alleged that under the Scheme of amalgamation, Wilkinson Ltd., was amalgamated with M/s. Indian Shaving Products Limited i.e. Gillette India Limited. The Execution Notice was received only on 01.07.2002. Only then, the Gillette India Limited had knowledge about the Suit and the exparte Decree passed thereon. From the date of knowledge about the Decree, the Gillette India Limited has filed the Application u/s 5 of the Limitation Act to condone the delay of 1664 days in filing the Petition to set aside the exparte Decree.
4. I.A. No. 1036 of 2003:- Earlier, the Gillette India Limited has filed the Application u/s 5 of the Limitation Act to condone the delay of 1664 days in filing the Petition to set aside the exparte Decree. The Gillette India Limited has filed this Application to amend the number of days as Five days instead of 1664 days.
5. I.A. No. 306 of 2004:- The Gillette India Limited has also filed this Application under Order IX Rule 13 and Section 151 C.P.C. to set aside the exparte Decree dated 16.08.1999 and to given them an opportunity to file their Written Statement and to contest the Suit.
6. The Applications were resisted by the Plaintiff. Admitting the amalgamation of Wilkinson Limited with Gillette India Limited, in the Counter Statement, it is alleged that Wilkinson Limited was well aware of the case in O.S. No. 182 of 1999; but has not chosen to contest the same inspite of several opportunities. Gillette India Limited cannot have a new right merely because the erstwhile Company Wilkinson Limited has become amalgamated with it. It is submitted that the Transferee Company takes the Assets subject to the Liability of the Transferor Company. Hence, Gillette India Limited is bound by the Decree and is liable to pay the amount. The reasons stated for the delay is untenable. The Applications have been filled only to de lay the Execution Proceedings filed by the Plaintiff and to defeat the rights of the Plaintiff.
7. Learned Subordinate Judge found that because of the amalgamation, Wilkinson Limited could not pursue the matter. Regarding the Amendment of number of days of delay, the lower Court found that because of amalgamation and change of name of the Company, there must have arose confusion regarding number of days of delay. Finding that by condoning the delay, no serious prejudice would be caused to the Plaintiff, the lower Court allowed the Application to condone the delay on payment of costs of Rs. 1000/-. I.A. No. 1036 of 2003 was also allowed, ordering Amendment of number of days as Five days. The Application in I.A. No. 306 of 2004 was also allowed setting aside the exparte decree. The Defendant Company had filed its Written Statement on 07.10.2004 in O.S. No. 182 of 1999.
8. Aggrieved over the orders, condoning the delay in filing the Application to set aside the exparte order and setting aside the exparte order, the Plaintiff has preferred these Civil Revision Petitions. Assailing the Impugned Orders, learned counsel for the Revision Petitioner/Plaintiff interalia contended:
that the amalgamation was on 19.10.2000 and even after amalgamation, the parties have not chosen to file any Application to set aside the exparte Decree;
the reason stated that the erstwhile Company - Wilkinson Limited has not intimated to the Gillette India Limited about the Suit in O.S. No. 182 of 1999 and the Decree thereon is quite unacceptable;
the transferee Company - Gillette India Limited is responsible for all the liabilities and the financial commitments of Wilkinson Limited particularly in the instances of Court Decrees ;
when passing of the exparte Decree was intimated to Wilkinson Limited, the reason stated that Defendant had knowledge of exparte Decree only on receiving the Notice on the Execution Proceedings is unbelievable.
Raising the above contentious points, learned counsel for the Revision Petitioner/Plaintiff prays to set aside the Impugned orders and sustain the exparte Decree.
9. Learned counsel for the Respondent/Defendant (presently Gillette India Limited) has submitted that in proper exercise of discretion, when the lower Court has condoned the delay, the Revisional Court may not interfere. Placing reliance upon the decisions reported in 1998 (7) S.C.C. 123 = 1999-1-L.W. 739, learned counsel for the Respondent has submitted that a liberal approach is to be adopted while condoning the delay and an opportunity to contest the Suit is not to be shut out to the Defendant particularly when they are Public Limited Companies. Submitting that as per the order of the Court in I.A. No. 1049 of 2002, the cost of Rs. 1000/- was paid and the Plaintiff received the amount and the exparte Decree having been set aside, learned counsel for the Respondent has contended that having received the cost, the Plaintiff is precluded from challenging the orders. In support of his contention, learned counsel for the Respondent has relied upon the decision reported in AIR 1990 Gauhati 12.
10. Upon consideration of the contentions of both parties, Impugned Order and other materials on record, the following points arise for consideration in these Civil Revision Petitions;
(1) Whether the exercise of discretion in condoning the delay and setting aside the exparte Decree is perverse and manifestly erroneous warranting interference?
(2) Whether the knowledge of Wilkinson Limited be attributed to the amalgamated Company - Gillette India Limited?
11. The Suit was filed against the Wilkinson Limited. By the order of the Company Court at New Delhi in C.P. Nos. 252 and 253 of 2000 dated 19.10.2000, Wilkinson Limited was amalgamated with Gillette India Limited. The Amalgamation Certificate is also said to have been issued on 21.12.2000. From the date of Amalgamation, Gillette India Limited is in management of the erstwhile Company viz., Wilkinson Limited. In O.S. No. 182 of 1999, exparte Decree against Wilkinson Limited was passed on 16.08.1999. Since the Defendant Company was in the process of Amalgamation, quite reasonably, the Defendant Company may not have informed about the case in O.S. No. 182 of 1999. The reason stated by Gillette India Limited that they had knowledge about the Decree passed only on 01.07.2002, when they have been served with Notice in the Execution Proceedings is quite probable and acceptable.
12. Informing about the exparte Decree, the Plaintiff had sent Notice to Wilkinson Limited on 14.07.2000. No doubt, at that time, Wilkinson Limited had not taken any steps to set aside the exparte Decree in O.S. No. 182 of 1999. Perhaps, the Company being in the process of amalgamation, had not bestowed its attention to set aside the exparte Decree passed in O.S. No. 182 of 1999. But, no negligence could be attributed to Wilkinson Limited on that score.
13. I.A. No. 1049 of 2002 was filed on 02.08.2002. The Plaintiff had taken notice of the same on 30.08.2002. The Plaintiff had repeatedly taken adjournments for filing the Counter Statement and filed the Counter Statement only in September 2003. It is stated that while the Plaintiff was taking repeated adjournments for filing the Counter Statement, he was very much pressing of the Attachment of Respondent''s Properties in the Execution Proceedings.
14. In the Execution Petition filed by the Plaintiff, Notice was received in June 2002. Gillette India Limited has filed the Application under Order IX Rule 13 C.P.C for condoning the delay. Initially the Application was filed to condone the delay of 1664 days in filing the Application to set aside the exparte Decree. Later, alleging that they had knowledge only at the time when they have been served with Notice in the Execution Petition, I.A. No. 1036 of 2003 was filed on 30.09.2003 to amend the number of days of delay from 1664 days to 5 days. The reason stated by the Gillette India Limited that they had knowledge about the exparte Decree only in June 2002 cannot be discarded.
15. Learned counsel for the Respondent/Plaintiff has submitted that the Transferee Company is responsible for all the liabilities and the Financial Commitments and they ought to have honoured the Court Decree. It is further contended that the Transferee Company must have had knowledge of the Decree passed in O.S. No. 182 of 1999 at the time when the Wilkinson Limited was amalgamated with the Transferee Company by the order of the Company Court on 19.10.2000. Learned counsel for the Respondent has further contended that inference of knowledge has to be drawn against Gillette India Limited and the delay is wanton and Wilful to delay the Execution Proceedings. This contention does not merit acceptance. When the Companies conglomerate in amalgamation by the orders of the Company Court, it cannot be expected that the Transferee Company would have knowledge about each and every Liabilities and the Financial Commitments. The Contention that Gillette India Limited had knowledge about the Decree passed in O.S. No. 182 of 1999 at the time of amalgamation has no substance.
16. I.A. No. 1049 of 2002 was allowed condoning the delay of 5 days on payment of Cost of Rs. 1000/-. It is stated that the cost of Rs. 1000/- was paid to the Plaintiff and the Plaintiff has received the cost. The Defendant had also filed the Written Statement in O.S. No. 182 of 1999 on 07.10.2004 and the case was also posted finally for Trial on 03.02.2005. In the meanwhile, the Suit was dismissed for default and the Plaintiff is said to have restored the Suit. The Suit is posted on 30.09.2005. Having accepted the cost, it must be held that the Plaintiff has adopted the course of acceptance of the order of the Court. Having received the amount of Rs. 1000/-, the Plaintiff is precluded from challenging the order passed in I.A. No. 1049 of 2002. In support of his contention that the Plaintiff is precluded from challenging the order, learned counsel for the Respondent/Defendant has placed reliance upon the decision reported in Ram Naresh Kanoo ..vs.. Harjashbir Singh (A.I.R. 1990 Gauhati 12). Referring to the decisions reported in Metal Press Works v. Guntur Merchants Cotton Press AIR 1976 A.P. 205 and Dhrubendra Deb Royand others v. Kumarendra Deb Roy and others AIR 1959 CAL. 19, in the aforesaid decision, the Gauhati High Court has held
....With respect, I am in full agreement with the above decisions and observations. Accordingly, it is held that where the Application for restoration was allowed subject to the payment of the costs of the Defendant, the party who accepts either directly or through his counsel the costs awarded in a conditional order, is precluded or barred from attacking the validity of the portion of the order with which he is aggrieved.....
With respect, this Court in in full agreement with the above observations. The acceptance of cost in a conditional order would prevent the Plaintiff from questioning the correctness of the order. Having accepted the order of the Court, the judicial superintendence cannot be invoked to assail the impugned order as perverse.
17. Contending that liberal approach is to be adopted in condoning the delay, learned counsel for the Respondent/Defendant has relied upon the decision of the Supreme Court in reported in
....Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest republican up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.....
18. Refusing to condone the delay would result in foreclosing the party from putting forth his defence. Normally, the Court should lean towards disposal of the cases on merits by affording a fair opportunity. An exparte Decree is not final, so long as the party had no knowledge of the Decree passed against him. While so, the Transferee Company - Gillette India Limited cannot be burdened with the liability without trial when no indifference could be attributed to Gillette India Limited. It is well settled that the words "Sufficient Cause" should receive liberal construction so as to advance substantial justice. When no negligence or inaction or want of bonafide is imputable to a party, the lower Court, after Enquiry has condoned the delay finding that there is "Sufficient Cause" and also setting aside the exparte order. When the Court below has exercised the discretion, exercising the Revisional Jurisdiction, the High Court would not interfere unless the Impugned Order is shown to be perverse or manifestly erroneous. There is nothing to suggest that the Impugned orders suffer from perversity or erroneous approach warranting interference. These Civil Revision Petitions are bereft of merits and are bound to fail. For the foregoing reasons, these Civil Revision Petitions are dismissed, confirming the orders dated 29.03.2004 and 06.04.2004 of the learned First Additional Subordinate Judge, Tiruchirappalli in I.A. No. 1049 of 2002 in O.S. No. 182 of 1999 and I.A. No. 306 of 2004 in O.S. No. 182 of 1999. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P. No. 637 of 2004 is dismissed. Learned First Additional Subordinate Judge, Tiruchirappalli is directed to expedite the Trial and dispose of the Suit expeditiously.
