IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 FAO.No. 183 of 2004() -------------------------------- AGAINST THE ORDER DATED 10/09/2002 IN IA 2319/01 & IA 2320/01 IN OS.145/1998 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): PETITIONER/ DEFENDANT -------------------------- HANSA TRAVELLS, PTV.LTD.A LIMITED COMPANY, INCORPORATED UNDER THE COMPANIES ACT HAVING ITS REGISTERED OFFICE, AT PALLIMUKKU JN. S.A.ROAD, KOCHI 16, REP. BY ITS MANAGING DIRECTOR, T.P.RAJESH. BY ADV. MR.S.SREEKUMAR RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------- INDIAN AIRLINES LIMITED COMPANY, INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AG 113, GURUDWARA, RAKHABGANJ ROAD, NEW DELHI 110 001, AND HAVING BRANCH AT AIRLINES HOUSE, DURBAR HALL ROAD, ERNAKULAM, KOCHI - 16. BY MR.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 MR.E.K.NANDAKUMAR FOR R1 MR.A.K.JAYASANKAR NAMBIAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2412/2004 IN F.A.O. NO.183/2004 DISMISSED 02.06.2009 SD/- P.R.RAMAN, JUDGE SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE TSS P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------- FAO NO.183 OF 2004 -------------------------------------------------- Dated 2nd June 2009 Judgment RAMAN, J. This is an appeal against the order dismissing the application to set aside the ex parte decree passed against the appellant/defendant, consequent upon dismissing the application for condonation of delay in filing the same. 2. The suit was decreed ex parte on 30.07.1998 with a delay of 954 days. The defendant filed an application to set aside the ex parte decree with a petition to condone the delay. The main ground advanced in the condonation petition is that summons was not served on the defendant. To prove the same, the Managing Director of the Company was examined as PW1 and the process server was examined as PW2. After analysing the oral testimony of PW1 and PW2, the court came to the conclusion that the contention of the appellant that he did not receive summons, cannot be believed to be true. That being the only reason for condonation of delay, the same was dismissed. FAO 183 OF 2004 -2- Consequently, the petition to set aside the ex parte decree was also dismissed. Hence this appeal. 3. Heard the learned counsel for the appellant. The case of the appellant was that he came to know about the ex parte decree n 14.03.2001, when he received the additional written statement filed in a connected suit. But, C1 is a summons served on the defendant, C2 is the attachment order signed by Rajesh and C3 is another notice signed by Rajesh. PW2 Sobhana, the process server said that the summons was served at the office of the company. Of course, she did not know the person who received the same. Being a company and an artificial person, the summons could be read by an authorised person. But no body says as to who received the summons. Admittedly, there were other cases between the parties and it is not as though the defendant was not prosecuting the matter diligently in the other suits. There is no reason in such circumstances to think that the defendant would have evaded appearance before the court and to contest the matter. Even if it is deemed to have been received by some body in the office, there is nothing to FAO 183 OF 2004 -3- show that the same has been brought to the notice of PW1. The defendant is a limited company whereas the plaintiff is a public limited company and this is in respect of money transaction between the parties. The defendant is none other than a travel agent, who has got business relationship with the plaintiff. In such circumstances, the court ought to have given an opportunity to contest the matter on merits and condoned the delay at least on terms, which is having been not done, justice is not meted out to the parties. In the circumstances, we set aside the order impugned in this appeal and allow the application for condonation of delay IA No.2319 of 2001 and also IA No.2320 of 2001 for setting aside the ex parte order. Accordingly, OS No.145 of 1998 is restored to file on condition that the appellant shall deposit Rs.2,000/- (Rupees two thousand only) towards costs before the court below within one month from today, failing which the appeal will stand dismissed. The parties may appear before the court below on 02.07.2009. Sd/-P.R.RAMAN, JUDGE Sd/-P.BHAVADASAN, JUDGE sta