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D.Sundaresan vs Art Leasing Limited on 18 October, 2010

Kerala High Court
D.Sundaresan vs Art Leasing Limited on 18 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 276 of 2010()


1. D.SUNDARESAN, S/O. DIVAKARAN,
                      ...  Petitioner

                        Vs



1. ART LEASING LIMITED,
                       ...       Respondent

                For Petitioner  :SRI.V.G.ARUN

                For Respondent  :SRI.N.ASHOK KUMAR

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :18/10/2010

 O R D E R

THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.

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FAO No.276 of 2010

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Dated 18th October 2010

Judgment

Bhavadasan, J.

OS No.341/02 before the Sub Court,

Chengannur was a suit for money against two persons. It

related to a hire purchase loan in relation to a tipper lorry

bearing registration no.KL-1/B-7983. The second

defendant in the suit was the guarantor for the financial

arrangement between the plaintiff and the first defendant. It

appears that the suit was decreed ex parte allowing the

plaintiff to realise a sum of Rs.5,31,949/- with future

interest @ 24% per annum on the principal amount of

Rs.2,73,600/- from the date of suit till realisation.

2. The defendants filed two applications namely

IA Nos.239/08 and 240/08, to have the ex parte decree

against them, set aside and also to condone the delay in

filing the application to set aside the ex parte decree.

According to them, they had not received summons from

FAO No.276/10 2

the Court and therefore, they did not appear. They say that

they have strong contentions to urge before Court.

3. Since the defendants were absent and they

were not represented, the court below dismissed IA

No.239/08 by order dated 13.08.2008. Consequently, the

application to set aside the ex parte decree was also

dismissed. The said order is assailed in this appeal.

4. There is nothing to indicate that there was any deliberate

act on the part of the defendants in not appearing before

the court below on the date when IA No.239/08 was

posted. The defendants have stated that they have very

strong contentions to urge in reply to the plaintiff’s claim

and that the decree was obtained without actually serving

summons on them. They had also filed a petition to set

aside the ex parte decree and to condone the delay.

4. Considering the facts and circumstances of

the case, it is felt that an opportunity ought to have been

given to the defendants to have the applications filed by

them, heard on merits, since it is improper for the court

FAO No.276/10 3

below to have dismissed IA No.239/08 for default.

However, it cannot be said that there was absolutely no

laches on the part of the defendants. If at all any injury is

caused to the plaintiff, that may be compensated by

awarding costs.

5. In the result, this appeal is allowed. The

impugned order is set aside and IA Nos.239/08 and 240/08

are restored to file on condition that the petitioner before

this court pays to the counsel for the respondent herein a

sum of Rs.5,000/- (Rupees Five Thousand only) within two

weeks from today. The court below is directed to dispose of

those applications in accordance with law as expeditiously

as possible.

THOTTATHIL.B.RADHAKRISHNAN,
JUDGE

P.BHAVADASAN, JUDGE
sta

FAO No.276/10 4

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