IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 38 of 2008()
1. M/S. RANI DRUG HOUSE,
... Petitioner
2. JOJU THOMAS,
3. JOHN THOMAS,
Vs
1. P.MAGHAN MAL AND SONS CO. WLL,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.P.B.SAHASRANAMAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :18/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
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FAO 38 OF 2008
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Dated 18th August 2009
Judgment
BHAVADASAN, J.
Aggrieved by the order dated 18.12.2007 in IA No.2533/07
in OS No.366/06 the petitioners before the court below have
come up in appeal. By the said order, the court below set aside
the ex parte decree on condition that the petitioners pay
Rs.25,000/- towards travelling expenses of the plaintiff and also
deposit a sum of Rs.2,00,434/- towards costs.
2. The suit was one for money. It was instituted by the
Managing Partner of P.Maghan Mal & Sons, situated in the
middle east. Petitioners 2 and 3 are partners of the 1st petitioner
herein. Amount was due to the defendants towards purchase of
certain articles to the tune of 37,470/- US Dollars. The plaintiff
had already paid the amount on condition that the defendants
shall supply the necessary goods. When the defendants
defaulted in supplying the goods, the amount was demanded
back. Since the amount was not paid, the suit was instituted.
FAO 38/08 2
3. The defendants resisted the suit and had filed a written
statement. But when the suit was taken up for consideration, the
counsel for the defendants reported no instruction and an ex
parte decree was passed on 30.07.2007.
4. Thereafter, the defendants preferred IA No.2533/04 for
setting aside the ex parte decree and having the suit heard on
merits. In the affidavit filed in support of the petition, they pointed
out that the defendants had gone to Delhi in connection with
their business and returned only on 08.08.2007. They did not
get the post card stated to have been sent by their counsel.
5. The respondents submitted that there was no bona fide
in the claim made by the plaintiff. It was pointed out that no
document whatsoever were produced to show that the
defendants had gone to Delhi.
6. The court below found that there was nothing to show
that the claim made by the defendants was true and there was
no reason as to why he could not atleast give instructions to his
counsel. But the court below felt that an opportunity should be
given to them to have the case heard on merits and the
FAO 38/08 3
petitioners were directed to deposit the expenses and also the
costs. On that basis, the impugned order was passed.
7. At the time of admission of this appeal, this court
granted interim stay on condition that the petitioners deposit a
sum of Rs.50,000/- on or before 18.2.2008 before the court
below. The appellants have not deposited the said amount and
accordingly, the interim order was vacated.
8. It needs to be noticed that on application made by the
petitioners before the court below, the ex parte decree was set
aside on condition. One cannot omit to note that the counsel for
the petitioners before the court below had represented no
instruction and there is no reason as to why the petitioners
before the court below could not inform the counsel about their
non-availability when the case was listed for trial.
9. The court below has stated that on 28.5.2007, the
parties were informed that the suit would be listed to 23.7.2007.
10. If that be so, as rightly noticed by the court below, the
claim that the defendants came to know that fact only on
8.8.2007, cannot be accepted. The non-compliance of the order
FAO 38/08 4
of this court by the appellants shows that there are no bona
fides in the matter. In the circumstances of the case, it does not
appear to be necessary for this court to interfere with the order
of the court below. The appeal is devoid of any merits and it is
accordingly dismissed. There will be no order as to costs.
P.R.RAMAN, JUDGE
P.BHAVADASAN, JUDGE
sta
FAO 38/08 5