N. MOHAN versus R. MADHU on 21 November 2019

156

[2019] 14 S.C.R. 156

SUPREME COURT REPORTS

[2019] 14 S.C.R.

A

N. MOHAN

v.

R. MADHU

(Civil Appeal No. 8898 of 2019)

BNOVEMBER 21, 2019

[R. BANUMATHI, A. S. BOPANNA AND

HRISHIKESH ROY, JJ.]

Code of Civil Procedure, 1908 – Or. IX, r.13 and s.96(2) –CRespondent-plaintiff case was that he lent appellant a sum ofRs.45,00,000/- and appellant-defendant failed to return the saidamount – The suit was decreed ex-parte – Thereafter, appellant filedapplication u/s.5 of the Limitation Act to condone delay of 276 daysin filing the petition u/Or. IX, r.13 CPC to set aside the ex-partedecree – The petition was dismissed by the Trial Court and revisionDagainst the same was dismissed by the High Court – The SLPpreferred against the said order also came to be dismissed by theSupreme Court – After dismissal of SLP, the appellant filed firstappeal along with application to condone the delay of 546 days –High Court dismissed the application for condonation of delay onEthe ground that in the earlier proceedings u/Or. IX, r. 13 CPC, theappellant had stated the same reasons to set aside the ex-parte decreeand same was not accepted by the Trial Court, High Court and theSupreme 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 matterof procedure; but is a substantive right – Right to appeal u/s.96(2)FCPC challenging the original decree passed ex-parte, being astatutory right, the defendant cannot be deprived of the statutoryright thereby on the ground that the application filed u/or. IX, r. 13CPC was earlier dismissed – Whether the defendant has adopteddilatory tactics or where there is a lack of bona fide in pursuing theGremedy of appeal u/s. 96 (2) CPC, has to be considered dependingupon 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 H

interest of justice, appellant granted opportunity to put forth hisdefence in the suit for recovery of money – To avail thisopportunity, appellant directed to deposit the balance amount ofRs. 20,00,000/-, the delay of 546 days in filing the first appealcondoned.

Disposing the appeal, the Court

HELD : 1. The defendant against whom an ex-parte decreeis passed, has two options. First option is to file an applicationunder Order IX Rule 13 CPC and second option is to file anappeal under Section 96(2) CPC. The question to be consideredis whether the two options are to be exercised simultaneously orcan also be exercised consecutively. An unscrupulous litigant may,of course, firstly file an application under Order IX Rule 13 CPCand carry the matter up to the highest forum; thereafter may optto file appeal under Section 96(2) CPC challenging the ex-partedecree. In that event, considerable time would be lost for theplaintiff. The question falling for consideration is that whetherthe remedies provided as simultaneous can be converted intoconsecutive 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 merelyon the ground that earlier, the application filed under Order IXRule 13 CPC was dismissed. Whether the defendant has adopteddilatory tactics or where there is a lack of bona fide in pursuingthe remedy of appeal under Section 96(2) of the Code, has to beconsidered depending upon the facts and circumstances of eachcase. In case the court is satisfied that the defendant has adopteddilatory tactics or where there is lack of bona fide, the court maydecline to condone the delay in filing the first appeal under Section96(2) CPC. But where the defendant has been pursuing theremedy bona fide under Order IX Rule 13 CPC, if the court refusesto condone the delay in the time spent in pursuing the remedyunder Order IX Rule 13 CPC, the defendant would be deprivedof the statutory right of appeal. Whether the defendant hasadopted dilatory tactics or where there is lack of bona fide inpursuing the remedy of appeal under Section 96(2) of the code A

B

C

D

E

F

G

Aafter the dismissal of the application under Order IX Rule 13CPC, is a question of fact and the same has to be considereddepending upon the facts and circumstances of each case.[Para 15] [166-B-E]

3. When the defendant filed appeal under Section 96(2) CPCBagainst an ex-parte decree and if the said appeal has beendismissed, thereafter, the defendant cannot file an applicationunder Order IX Rule 13 CPC. This is because after the appealfiled under Section 96(2) of the Code has been dismissed, theoriginal decree passed in the suit merges with the decree of theappellate court. Hence, after dismissal of the appeal filed underCSection 96(2) CPC, the appellant cannot fall back upon the remedyunder Order IX Rule 13 CPC. [Para 16] [166-F-G]

4. In the present case, the respondent has filed the MoneySuit being OS No.76 of 2015 for recovery of Rs.46,98,500/-together with interest and the said suit was decreed ex-parte onD09.10.2015. Execution petition being EP No.95 of 2016 was alsofiled for execution of the decree. The appellant has filed applicationbeing IA No.327 of 2016 to condone the delay of 276 days infiling the application to set aside the ex-parte decree. In the saidapplication, the appellant has stated that he has been residing atEChennai; whereas the notice was served at Trichy and therefore,he did not have knowledge about the filing of the said suit in OSNo.76 of 2015 before the ADJ Court at Tiruchirappalli and theex-parte decree was passed on 09.10.2015. The appellant hasfurther averred that he came to know about the ex-parte decreeand the execution petition only at the time when he appeared inFCC No.240 of 2016 at Karur on 29.07.2016. The said applicationfiled by the appellant seeking condonation of delay of 276 days infiling the application to set aside the ex-parte decree wasdismissed by the order dated 04.01.2017. The revision and theSLP 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 appealwith the application to condone the delay of 546 days in filing thefirst appeal. As pointed out earlier, there was a delay of 276 days in filing the application to set aside the ex-parte decree. Pursuingthe proceedings in the application filed under Order IX Rule 13CPC has caused further delay of 270 days. Thus, there has beena total delay of about 546 days in filing the first appeal. In theapplication for condonation of delay, of course, the appellant hasraised the very same ground which was taken in the applicationfiled 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 wouldhave been well advised that if he had filed the first appealsimultaneously along with the application under Order IX Rule13 CPC. The appellant has however shown his bona fide bydepositing Rs. 25,00,000/- in compliance with the orders of thisCourt dated 13.08.2018. The said amount of Rs. 25,00,000/- waspermitted to be withdrawn by the respondent-plaintiff.Considering the facts and circumstances of the case and in theinterest of justice, in our view, the appellant deserves anopportunity to put forth his defence in the suit for recovery ofmoney. But to avail this opportunity, he must deposit the balanceamount of Rs.20,00,000/- as a condition precedent for condonationof delay. In these terms, the impugned judgment is accordinglyliable to be set aside. [Para 19] [167-G-H; 168-A-B]

Bhivchandra Shankar More v. Balu Gangaram Moreand 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 SCC649 : [2018] 1 SCR 359 – relied on.

Case Law Reference

(2019) 6 SCC 387[2004] 6 Suppl. SCR 1104[2018] 1 SCR 359

relied onrelied onrelied on

Para 6Para 11Para 12

A

B

C

D

E

F

G

H

[2019] 14 S.C.R.

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 8898of 2019.

From the Judgment and Order dated 24.04.2018 of the MaduraiBench 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, AbdullaN., Advs. for the Respondent.

The Judgment of the Court was delivered byCR. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the impugned order dated 24.04.2018passed 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 theDHigh Court has refused to condone the delay of 546 days in filing thefirst appeal against the judgment and decree passed in OS No.76 of2015 dated 09.10.2015.

3. Brief facts which led to filing of this appeal are as follows:- EThe appellant-defendant is a businessman doing business of teaand real estate. Case of the respondent-plaintiff is that on 10.01.2015,the appellant approached the respondent-plaintiff for financial assistancefor a sum of Rs.45,00,000/- for the purpose of his business needs. Therespondent lent him the sum of Rs.45,00,000/- and there was nodocumentation for the same. According to the respondent, it was agreedFthat the said amount will be returned to the respondent with an interestof 18% per annum. The appellant agreed to return the said amountwithin two months; but the appellant has not paid the amount. On theother hand, the appellant is said to have issued two post-dated chequesto the respondent, one for an amount of Rs.25,00,000/- and another forGan amount of Rs.20,00,000/-. When the said cheques were presentedfor collection on 10.03.2015, the same were returned with theendorsement that “payments stopped by the drawer”. The respondent-plaintiff filed a civil suit being OS No.76 of 2015 before the AdditionalDistrict Judge, Tiruchirappalli. The said suit was decreed ex-parte on09.10.2015.

H

H

N. MOHAN v. R. MADHU[R. BANUMATHI, J.]

4. Order IX Rule 13 CPC Proceedings:- The appellant-defendant filed IA No.327 of 2016 in OS No.76 of 2015 under Section5 of the Limitation Act to condone the delay of 276 days in filing thepetition under Order IX Rule 13 CPC to set aside the ex-parte decree.In the said application, the appellant has stated that summons was sentto the appellant’s old address at Trichy and the same was returnedunserved and the ex-parte decree was passed on 09.10.2015. It wasaverred in the said application that the appellant is residing in Chennaisince January, 2014. The appellant has alleged that when he went toattend a case in CC No.240/2016 at Karur Court on 29.07.2016, hecame to know about the passing of the ex-parte decree in OS No.76 of2015. Thereafter, the appellant has taken steps to set aside the ex-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 petitionunder Order IX Rule 13 CPC to set aside the ex-parte decree. The saidpetition was dismissed by the Additional District Judge by order dated04.01.2017. The appellant has challenged the said order by filing revisionbeing CRP (MD) No.257 of 2017 (NPD) before the High Court.Rejecting the contention of the appellant that he has been residing inChennai, 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 bedismissed by the Supreme Court by order dated 07.04.2017.

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 dated09.10.2015 along with application being CMP(MD) No.6566 of 2017praying to condone the delay of 546 days in filing the appeal. In the saidapplication, the appellant raised the very same grounds that he is havingresidence at Chennai and that the summons was not served on him andthat summons was taken to Trichy’s address and thereafter, ex-partedecree was passed against him on 09.10.2015 and hence, prayed forcondonation of delay. The High Court dismissed the application forcondonation of delay on the ground that in the earlier proceedings underOrder IX Rule 13 CPC, the appellant has stated the same reasons to setaside the ex-parte decree and that the reasons so stated by the appellantwas not accepted by the trial court, High Court and the Supreme Court.

A

B

C

D

E

F

G

H

APointing out that the appellant has chosen belatedly to file the first appealin time, the High Court has dismissed the application for condonation ofdelay of 546 days in filing the first appeal. Being aggrieved, the appellanthas filed this appeal.

6. Mr. V. Singan along with Mr. S. Mahendran, learned counselBappearing for the appellant has submitted that the appellant has shownsufficient cause for the delay in filing the first appeal and that the appellanthas to be given an opportunity to contest the decree on merits. It wassubmitted that the appellant has adduced documentary evidence to showthat he was not residing at the Trichy address where the substitutedservice was affected and while so, the High Court erred in dismissingCthe application for condonation of delay filed along with the first appeal.Contending that despite the fact that an application under Order IX Rule13 CPC was dismissed, the first appeal under Section 96(2) CPC beinga statutory right is still available, the learned counsel for the appellantplaced reliance upon Bhivchandra Shankar More v. Balu GangaramDMore and others (2019) 6 SCC 387.

7. Per contra, Mr. Jayanth Muthraj, learned Senior counsel forthe respondent submitted that the appeal filed by the appellant was beyondthe period of limitation and the delay was not satisfactorily explained. Itwas submitted that the earlier application for condonation of delay inEfiling the application for setting aside the ex-parte decree under OrderIX Rule 13 CPC was not accepted by the trial court, High Court and theSupreme Court and the same has attained finality. It was submitted thatthe appellant cannot reagitate the very same question which has attainedfinality in the earlier proceedings.F8. We have carefully considered the submissions and perused theimpugned judgment and materials on record. The following points arisefor consideration in this appeal:-

(i) After dismissal of the application filed under Order IX Rule13 CPC for condonation of delay in filing the appeal, whetherGthe appeal filed under Section 96(2) CPC against the ex-partedecree dated 09.10.2015 is maintainable?

(ii) Whether the time spent in the proceedings to set aside theex-parte decree be taken as “sufficient cause” within themeaning of Section 5 of the Limitation Act, 1908 so as tocondone the delay in preferring the first appeal?H

9. When an ex-parte decree is passed, the defendant has tworemedies – (a) Either to file an application under Order IX Rule 13 CPCto set aside the ex-parte decree by satisfying the court that the summonswas not served or if served, the defendant was prevented by “sufficientcause” 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 appellatecourt in terms of Section 96(2) CPC and challenge the ex-parte decreeon merits.

10. Right to file an appeal under Section 96(2) CPC is a statutoryremedy. The right to appeal is not a mere matter of procedure; but is asubstantive right. Right to appeal under Section 96(2) CPC challengingthe original decree passed ex-parte, being a statutory right, the defendantcannot be deprived of the statutory right merely on the ground that theapplication 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 whetherthe first appeal filed under Section 96(2) of the Code was maintainabledespite the fact that an application under Order IX Rule 13 CPC wasdismissed. Observing that the right to appeal is a statutory right and thatthe litigant cannot be deprived of such a right, the Supreme Court heldas under:- “36. … A right to question the correctness of the decree in a firstappeal is a statutory right. Such a right shall not be curtailed norshall any embargo be fixed thereupon unless the statute expresslyor by necessary implication says so. (See Deepal GirishbhaiSoni v. United India Insurance Co. Ltd. (2004) 5 SCC 385 andChandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.)

…….

38. The dichotomy, in our opinion, can be resolved by holding thatwhereas the defendant would not be permitted to raise a contentionas regards the correctness or otherwise of the order posting thesuit for ex parte hearing by the trial court and/or existence of asufficient case for non-appearance of the defendant before it, itwould be open to him to argue in the first appeal filed by himunder Section 96(2) of the Code on the merits of the suit so as toenable him to contend that the materials brought on record by theplaintiffs were not sufficient for passing a decree in his favour or A

B

C

D

E

F

G

H

A

Athe suit was otherwise not maintainable. Lack of jurisdiction ofthe court can also be a possible plea in such an appeal. We, however,agree with Mr Chaudhari that the “Explanation” appended to Order9 Rule 13 of the Code shall receive a strict construction as washeld by this Court in Rani Choudhury (1982) 2 SCC 596, P.Kiran Kumar (2002) 5 SCC 161 and Shyam Sundar Sarma v.BPannalal Jaiswal (2005) 1 SCC 436.”

12. After referring to Bhanu Kumar Jain and other judgmentsand 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 LegalCRepresentative (2018) 2 SCC 649, the Supreme Court held as under:- “17. A defendant against whom an ex parte decree is passed hastwo options: the first is to file an appeal. The second is to file anapplication under Order 9 Rule 13. The defendant can takerecourse to both the proceedings simultaneously. The right of appealDis 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 partedecree merges with the order of the appellate court, a petitionunder Order 9 Rule 13 would not be maintainable.When anapplication under Order 9 Rule 13 is dismissed, the remedy of theEdefendant is under Order 43 Rule 1. However, once such an appealis dismissed, the same contention cannot be raised in a first appealunder Section 96. The three-Judge Bench decision in BhanuKumar Jain (2005) 1 SCC 787 has been followed by anotherBench of three Judges in Rabindra Singh v. Financial Commr.,Cooperation (2008) 7 SCC 663, and by a two-Judge Bench inFMahesh Yadav v. Rajeshwar Singh (2009) 2 SCC 205. ……..”[Underlining added]

13. Considering the scope of Order IX Rule 13 CPC and thestatutory right to appeal under Section 96(2) CPC, after referring toBhanu Kumar Jain, in Bhivchandra Shankar More, this Court heldGas under:- “11. It is to be pointed out that the scope of Order 9 Rule 13 CPCand Section 96(2) CPC are entirely different. In an applicationfiled under Order 9 Rule 13 CPC, the Court has to see whetherthe summons were duly served or not or whether the defendant H

was prevented by any “sufficient cause” from appearing whenthe suit was called for hearing. If the Court is satisfied that thedefendant was not duly served or that he was prevented for“sufficient cause”, the court may set aside the ex parte decreeand restore the suit to its original position. In terms of Section96(2) CPC, the appeal lies from an original decree passed exparte. In the regular appeal filed under Section 96(2) CPC, theappellate court has wide jurisdiction to go into the merits of thedecree. The scope of enquiry under two provisions is entirelydifferent. Merely because the defendant pursued the remedy underOrder 9 Rule 13 CPC, it does not prohibit the defendant fromfiling the appeal if his application under Order 9 Rule 13 CPC isdismissed.”

12. The right of appeal under Section 96(2) CPC is a statutoryright and the defendant cannot be deprived of the statutory rightof appeal merely on the ground that the application filed by himunder Order IX Rule 13 CPC has been dismissed. In BhanuKumar Jain v. Archana Kumar and Another (2005) 1 SCC 787,the Supreme Court considered the question whether the first appealwas maintainable despite the fact that an application under OrderIX Rule 13 CPC was filed and dismissed. Observing that theright of appeal is a statutory right and that the litigant cannot bedeprived of such right, in paras (36) and (38), it was held as under:-

36. … A right to question the correctness of the decree in afirst appeal is a statutory right. Such a right shall not be curtailednor shall any embargo be fixed thereupon unless the statuteexpressly or by necessary implication says so. (See DeepalGirishbhai Soni v. United India Insurance Co. Ltd. (2004)5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC734.)

…………..”

14. The defendant against whom an ex-parte decree is passed,has two options. First option is to file an application under Order IX Rule13 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 beexercised simultaneously or can also be exercised consecutively. Anunscrupulous litigant may, of course, firstly file an application under Order A

B

C

D

E

F

G

H

AIX Rule 13 CPC and carry the matter up to the highest forum; thereaftermay opt to file appeal under Section 96(2) CPC challenging the ex-parte decree. In that event, considerable time would be lost for theplaintiff. The question falling for consideration is that whether theremedies provided as simultaneous can be converted into consecutiveremedies.B

15. An appeal under Section 96(2) CPC is a statutory right, thedefendant cannot be deprived of the statutory right merely on the groundthat earlier, the application filed under Order IX Rule 13 CPC wasdismissed. Whether the defendant has adopted dilatory tactics or wherethere is a lack of bona fide in pursuing the remedy of appeal underCSection 96(2) of the Code, has to be considered depending upon thefacts and circumstances of each case. In case the court is satisfied thatthe defendant has adopted dilatory tactics or where there is lack ofbona fide, the court may decline to condone the delay in filing the firstappeal under Section 96(2) CPC. But where the defendant has beenDpursuing the remedy bona fide under Order IX Rule 13 CPC, if thecourt refuses to condone the delay in the time spent in pursuing theremedy under Order IX Rule 13 CPC, the defendant would be deprivedof the statutory right of appeal. Whether the defendant has adopteddilatory tactics or where there is lack of bona fide in pursuing the remedyof appeal under Section 96(2) of the code after the dismissal of theEapplication under Order IX Rule 13 CPC, is a question of fact and thesame has to be considered depending upon the facts and circumstancesof each case.

16. When the defendant filed appeal under Section 96(2) CPCagainst an ex-parte decree and if the said appeal has been dismissed,Fthereafter, the defendant cannot file an application under Order IX Rule13 CPC. This is because after the appeal filed under Section 96(2) ofthe Code has been dismissed, the original decree passed in the suit mergeswith the decree of the appellate court. Hence, after dismissal of theappeal filed under Section 96(2) CPC, the appellant cannot fall backGupon the remedy under Order IX Rule 13 CPC.

17. In the present case, the respondent has filed the Money Suitbeing OS No.76 of 2015 for recovery of Rs.46,98,500/- together withinterest and the said suit was decreed ex-parte on 09.10.2015. Executionpetition being EP No.95 of 2016 was also filed for execution of theHdecree. As pointed out earlier, the appellant has filed application being

IA No.327 of 2016 to condone the delay of 276 days in filing theapplication to set aside the ex-parte decree. In the said application, theappellant has stated that he has been residing at Chennai; whereas thenotice was served at Trichy and therefore, he did not have knowledgeabout the filing of the said suit in OS No.76 of 2015 before the ADJCourt at Tiruchirappalli and the ex-parte decree was passed on09.10.2015. The appellant has further averred that he came to knowabout the ex-parte decree and the execution petition only at the timewhen he appeared in CC No.240 of 2016 at Karur on 29.07.2016. Asdiscussed earlier, the said application filed by the appellant seekingcondonation of delay of 276 days in filing the application to set aside theex-parte decree was dismissed by the order dated 04.01.2017. Therevision and the SLP preferred by the appellant also came to be dismissed.

18. Thereafter, the appellant has preferred the first appeal withthe 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 applicationto set aside the ex-parte decree. Pursuing the proceedings in theapplication filed under Order IX Rule 13 CPC has caused further delayof 270 days. Thus, there has been a total delay of about 546 days infiling the first appeal. In the application for condonation of delay, ofcourse, the appellant has raised the very same ground which was takenin the application filed under Section 5 of the Limitation Act to set asidethe ex-parte decree which was not accepted in the earlier proceedings.

19. The learned counsel for the appellant-defendant has submittedthat a huge amount of Rs.45,00,000/- is said to have been paid by cashwhich according to the learned counsel raises serious doubts about thegenuineness of such transaction. Per contra, the learned Senior counselfor the respondent-plaintiff has submitted that lending of Rs.45,00,000/-as hand loan is substantiated by issuance of two post-dated cheques infavour of the respondent by the appellant – one for the sum ofRs.25,00,000/- and another for the sum of Rs.20,00,000/-. We are notinclined to go into the merits of the contention of the parties. All that isto be pointed out is that the appellant would have been well advised thatif he had filed the first appeal simultaneously along with the applicationunder Order IX Rule 13 CPC. The appellant has however shown hisbona fide by depositing Rs.25,00,000/- in compliance with the orders ofthis Court dated 13.08.2018. The said amount of Rs.25,00,000/- waspermitted to be withdrawn by the respondent-plaintiff. Considering the AB

C

D

E

F

G

H

Afacts and circumstances of the case and in the interest of justice, in ourview, the appellant deserves an opportunity to put forth his defence inthe suit for recovery of money. But to avail this opportunity, he mustdeposit the balance amount of Rs.20,00,000/- as a condition precedentfor condonation of delay. In these terms, the impugned judgment isaccordingly liable to be set aside.B

20. The delay of 546 days in filing the first appeal shalltherefore be condoned with condition that the appellant should depositRs.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 standCdismissed. On such deposit of Rs.20,00,000/- the same shall be investedin a nationalised bank for a period of six months with the provision ofauto-renewal. The deposit of Rs.20,00,000/- and also the earlier depositof Rs.25,00,000/- would be subject to the outcome of the appeal. Ondeposit of Rs.20,00,000/-, the impugned judgment passed by the MaduraiDBench 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 delayin filing the appeal is condoned. The appeal shall be taken on file and theHigh Court shall proceed with the same in accordance with law. Wemake 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 underESection 138 of NI Act be proceeded on its own merits without beinginfluenced by any of the views expressed by this Court or by the HighCourt.

F

Ankit Gyan

Appeal disposed of.

G

H