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Judgment
MANMOHAN, J
I.A. 4957/2016
 Keeping in view the averments in the application, the delay in filing the application under Order 9 Rule 13 CPC is condoned.
 Accordingly, the application stands disposed of.
I.A. 4956/2016
Present application has been filed by the applicants/defendants under Order 9 Rule 13 CPC, for setting aside ex-parte decree dated 17th
September, 2015.
Learned counsel for the applicants/defendant states that after receiving the summons in the plaintiff’s suit on 11th December, 2013, the law
department of the defendant contacted the local advocate who assured the applicants/defendants that there was no merit in the matter and this Court
would dismiss the suit due to lack of territorial jurisdiction. He states that relying on the said legal advise, the defendants did not enter appearance in
the present suit.
He states that thereafter the applicants/defendants received notice on 14th March, 2017 of a letter dated 8thMarch 2017, which contained papers
pertaining to execution petition being EC 5 of 2017 filed by the petitioners/respondents in the High Court of Kolkata for execution of decree dated 17th
September, 2015.
Learned counsel for the applicants/defendants states that after receiving the notice for the execution petition the applicants/defendants contacted
and consulted their present advocate on 4th April, 2017 and filed the instant application on 13th April 2017.
Learned counsel for the applicants/defendants submits that in the present case, the defendants were prevented by sufficient cause from appearing
in the present suit. In support of his submission the learned counsel for the applicants/defendants relies on the judgment of the Hon’ble Supreme
Court in G.P.Srivastava v. R.K.Raizadaand Others, (2000) 3 SCC
The relevant portion of the said judgment is reproduced herein below:-
“7. Under order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the
summons were not duly served upon the defendant or he was prevented by any “sufficient cause†from appearingwhen the suit was called on for
hearing. Unless “sufficient cause†is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set
aside an ex parte decree. The words “was prevented by any sufficient cause from appearing†must be liberally construed to enable the court to
do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of
Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide
discretion in deciding the sufficient cause keeping in view the peculiar fact and circumstances of each case.
The “sufficient cause†for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be
stretched to rely upon other circumstances anterior in time. If “sufficient cause†is made out for non-appearance of the defendant on the date
fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked
and thereby condoned earlier……â€
The plaintiff in his reply dated 17th August, 2017 stated that the application is barred under Section 5 of the Limitation Act, 1963 as the limitation for
filing an application under Order 9 Rule 13 is 30 days. He states that the defendants were served summons for the suit on 11th December, 2013 and
the defendants chose not to appear believing that the plaintiff’s suit would be dismissed. He also states that the application filed by the
applicants/defendants shows deliberate and mala fide intent of applicants/defendants to delay the payment due to the plaintiff/respondent.
Having heard learned counsel for the parties, this Court is of the view that the applicant/defendants had knowledge of the plaintiff’s suit and
willingly chose not to participate in the court proceedings assuming that the suit would be dismissed on the grounds of territorial jurisdiction.
The Supreme Court in Parimal v. Veena Alias Bharti, (2011) 3 SCC 545 has held that:-
“13. Sufficient cause†is an expression which has been used in a large number of statues. The meaning of the word “sufficient†is
“adequate†or “enoughâ€, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient†embraces no
more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances
existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, “sufficient cause†means that
the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the
party cannot be alleged to have been “not acting diligently†or “remaining inactiveâ€â€¦â€¦
xxxx  xxxx  xxxx  xxxx
In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely
intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant
could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of
fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of
universal application.â€
Keeping in view the above, this Court is of the view that the applicants/defendants have failed to show ‘sufficient cause’ in the present case
to set aside the ex-parte decree dated 17th September, 2015. The explanation offered in the present application by the applicants/defendants is
meritless. In the opinion of this Court, the applicants/defendants in the present case have been negligent and they could not have presumed that the
plaintiff’s suit would be dismissed by this Court on account of lack of territorial jurisdiction. In the opinion of this Court, if the excuse of the
applicants/defendants for restoration is accepted, then no party will ever appear in the Court after receipt of summons.
Consequently, the present applications are dismissed on the ground of limitation as well as being without any merit.