IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 250 of 2009()
1. T.M.G.FINANCE & LEASING PVT.LTD.
... Petitioner
Vs
1. CHANDRAMATHIAMMA,AMBIKA SADANATHIL,
... Respondent
For Petitioner :SRI.M.JACOB MURICKAN
For Respondent :SRI.R.RAMADAS
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :13/11/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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F.A.O.No. 250 of 2009
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Dated this the 2nd day of November, 2009
JUDGMENT
Joseph, J.
The appellant challenges the order passed in I.A.No. 259 of
2009 in O.S.No. 41 of 2008. That application was filed to set
aside the ex parte decree. The appellant has also filed an
application for condonation of the delay, which was allowed, on
condition of the appellant depositing 10% of the plaint amount,
which comes to Rs.74,000/- It is the common case that the said
amount has already been deposited and the delay was condoned.
Thereafter, the court below proceeded to take up the present
application, which was dismissed.
2. We heard the learned counsel for the appellant,
Shri.Jacob Murikan and the learned counsel for the
respondent/plaintiff, Shri. R. Ramdas.
F.A.O.No. 250 of 200
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3. The learned counsel for the appellant would submit that
the order is not sustainable. The learned counsel for the
respondent submits that the suit is of the year 2004 and
renumbered as of the year 2008. He would further submit that the
respondent has deposited Rs.5,50,000/- with the defendant
company and the agreed rate of interest was 20%. He would
submit that in case the court is inclined to set aside the impugned
order, atleast the admitted amount may be directed to be deposited
as a condition.
4. The learned counsel for the appellant would contend that
the property belonging to the appellant has been attached and he
has filed an application to set aside the attachment, which is
pending. He has deposited fixed deposit receipt for Rs.7,50,000/-,
which earns interest at the rate of 9.5%.
5. In the circumstances of this case, we feel that it is only
fair that there is a decision on the merits of the matter with
opportunity to the parties.
F.A.O.No. 250 of 200
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6. Accordingly we allow this appeal. The impugned order is
set aside, on condition that the appellant will deposit Rs.1,51,000/-
before the court below within a period of one month. Upon such
deposit being made as aforesaid, the impugned order shall stand
set aside and the application filed by the appellant shall stand
allowed. If the suit is restored as above, the court below will take
up the suit and dispose of the same on or before 28.2.2010. If the
amount is not deposited, the impugned order will stand. We also
make it clear that if the appellant has already made an application
to lift the attachment, the trial court will take up the same and a
decision will be taken before final decision is taken in the matter
on merits.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
tm Judge