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
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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
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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
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