IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 150 of 2010()
1. SAKTHAN KURIES AND LOANS PRIVATE LTD.
... Petitioner
Vs
1. SABU K.M., AGED 49 YEARS, S/O.MANIAN,
... Respondent
2. PRASANNA KUMARI, AGED 42 YEARS,
For Petitioner :SRI.RANJITH XAVIER
For Respondent :SRI.B.S.SIVAJI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :14/10/2010
O R D E R
THOMAS P. JOSEPH, J.
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C.R.P.No.150 of 2010
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Dated this the 14th day of October, 2010.
ORDER
This revision arises from the order dated December 12, 2008 on
I.A.No.6554 of 2008 in O.S.No.261 of 2005 of the court of learned Principal Sub
Judge, Thrissur. That is a suit for money filed by the petitioner based on an
alleged chitty transaction. Respondents/defendants appeared in court and filed
written statement taking up various contentions including that the suit is not
maintainable being premature. The case was posted for trial in the list on
17.12.2007. Respondents and counsel remained absent. Consequently, an
exparte decree was passed on 17.12.2007. On 05.09.2008 respondents filed
I.A.No.6554 of 2008 to set aside the exparte decree and I.A.No.6553 of 2008 to
condone the delay of 234 days in filing I.A.No.6554 of 2008. In the affidavit in
support of the application it is stated that respondents were out of station during
the relevant time and were not aware of the exparte decree. In connection with a
cheque allegedly issued by respondent No.2 in favour of petitioner according to
the petitioner in satisfaction of the exparte decree) the latter issued notice of
dishonour in preparation of preferring a complaint under Section 138 of the
Negotiable Instruments Act. Respondents contended that it is from that notice
that they learnt about the exparte decree. Petitioner preferred his objection to
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both the applications on 20.10.2008. I.A.No.6553 of 2008 to condone the delay
came up before learned Sub Judge for consideration on 27.11.2008. Learned
Sub Judge passed the following order:
“Heard both sides. I.A. is allowed on payment
of cost of Rs.3,000/- within 15 days. Or else this
order stands as cancelled.”
Though respondents offered cost to the petitioner, the latter did not accept it.
Thereon respondents deposited cost in the court below. Noting that learned
Sub Judge disposed of I.A.No.6554 of 2008 as per order dated 12.12.2008 in
the following words:
“Delay condoned, on depositing cost. No
objection, I.A. is allowed. Call the suit on 19.1.2009.”
The order on I.A.No.6554 of 2008 is under challenge in this petition. Correctness
of the order on I.A.No.6553 of 2008 condoning delay is also challenged in this
revision. Learned counsel for petitioner contends that notwithstanding that
petitioner had preferred objection to the applications, learned Sub Judge has
proceeded as if there was no objection. It is contended that the impugned
orders are cryptic and there is no consideration of the explanation offered by
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respondents for their absence on 17.12.2007. Learned counsel for respondents
contend that even if objection was preferred no such objection was pressed at
the time the matter was heard and accordingly learned Sub Judge passed the
impugned orders. It is pointed out by learned counsel that the suit is coming up
for trial on 15.10.2010.
2. No doubt, petitioner had preferred objections to the applications on
20.10.2008. I.A.Nos.6553 of 2008 and 6554 of 2008 came up before the
learned Sub Judge for hearing later. But it is seen from order dated November
27, 2008 on I.A.No.6553 of 2008 that it was after hearing both sides that
learned Sub Judge was inclined to condone the delay on terms of cost. There is
no reason to think that the objection preferred by petitioner was not before the
learned Sub Judge while the impugned order was passed. Learned Sub Judge
thought that having regard to the circumstances stated in the affidavit in support
of the application it is a case where delay has to be condoned on terms of cost
and accordingly delay was condoned on condition of payment of cost of
Rs.3,000/-. I do not forget that the learned Sub Judge has not passed a detailed
order on I.A.No.6553 of 2008. But, in the circumstances stated above, when the
learned Sub Judge has exercised discretion to allow the application on payment
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of cost presumably because the learned Sub Judge thought that on the facts
and circumstances of the case respondents must be given an opportunity to
contest the case I do not find it necessary to interfere with that order.
3. Now turning to the order on I.A.No.6554 of 2008 learned Sub
Judge has observed that there was no objection in allowing the application.
There is no case for petitioner that counsel for petitioner was not heard when
I.A.No.6554 of 2008 was disposed of. In otherwords after hearing both sides
learned Sub Judge observed in the order dated December 12,2008 that there
was no objection. If that was wrong, remedy of petitioner was to seek review
before learned Sub Judge stating that it was not a case that petitioner had no
objection. That was not done. Apart from that, impugned orders are dated
27.11.2008 and 12.12.2008 and this petition itself is filed with a delay of 331
days (it is a different matter that the delay is condoned by a separate order). I
do not find it necessary to send back the case to the learned Sub Judge for
reconsideration for the reason that the impugned orders are passed in
November/December, 2008 and this revision is preferred on 15.03.2010 and
now suit itself is coming up for trial in the list on 15.10.2010. Allowing this
revision at this stage would disturb the schedule arranged by the learned Sub
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Judge for trial and disposal of the suit. Parties can now contest the suit and get
a decision on merit. In these circumstances I do not find reason to interfere with
the impugned orders.
Resultantly this revision fails. It is dismissed.
I.A.No.717 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks