IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3256 of 2009(K)
1. ABY JOSEPH, AGED 47 YEARS,
... Petitioner
Vs
1. THE SOUTH INDIAN BANK LTD.,
... Respondent
2. ELIZABETH, AGED 38 YEARS,
For Petitioner :SRI.JOSE THOMAS (PALA)
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :30/01/2009
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C. No.3256 of 2009
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Dated this the 30th day of January, 2009
JUDGMENT
Heard the counsel for the petitioner.
2. The petitioner is the defendant in
O.S.101/07 on the file of the Sub Court, Pala
instituted by the first respondent/bank for
recovery of money. The suit was decreed ex
parte as the petitioner as also the other
defendants in the suit did not appear when the
suit stood posted for trial in the special
list. Thereafter, the petitioner filed an
application to set aside the ex parte decree
and the court below vide Ext.P6 order impugned
in this Writ Petition, allowed the said
application on payment of cost of Rs.10,000/-
to the first respondent and producing receipt
within ten days.
3. To order the defendant who seeks to
get the ex parte decree set aside, to pay an
W. P. C. No.3256 of 2009 -2-
amount of Rs.10,000/- within a period of ten
days tantamounts to disallowing the petition
filed under Order IX Rule 13 as a person who
is a debtor in the normal course will not be
able to raise such a huge amount of
Rs.10,000/- within ten days and to pay by way
of cost to the first respondent/plaintiff. The
cost so ordered is highly disproportionate and
unconscionable and Ext.P6 order to that extent
cannot be sustained.
4. In the result, even without notice to
the respondent/decree holder/bank, cost being
in the discretion of the court and the court
below having exercised the discretion
illegally and without any propriety, I reduce
the cost imposed vide Ext.P6 order to
Rs.2,000/-. The said Rs.2,000/- shall be paid
to the first respondent/Bank positively in ten
days from today. In case cost is not so paid
within ten days, the petitioner shall forfeit
W. P. C. No.3256 of 2009 -3-
the benefit of cost having been reduced and
the petition filed under Order IX Rule 13
shall stand dismissed.
5. With the above directions this Writ
Petition is disposed of. The petitioner is
directed to produce a copy of this judgment in
the court below forthwith with notice to
counsel for the plaintiff/Bank as this Writ
Petition is being disposed of without notice
to the respondent/plaintiff. Issue copy of
this judgment to the counsel for the
petitioner urgently.
K.P.BALACHANDRAN,
JUDGE
kns/-