IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 CRP.No. 580 of 2010() --------------------- CMA.3/2004 of IST ADDL.DISTRICT COURT, THRISSUR OS.328/2000 of ADDL.SUB COURT, IRINJALAKUDA (IA 2149/2003) .................... REVISION PETITIONER(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------------------ M/S.AMBA AGENCIES,1/146,WEST NADA, IRINJALAKUDA PO, MUKUNDAPURAM TALUK,THRISSUR DISTRICT,REPRESEBTED BY ITS SOLE PROPRIETOR P.G.MENON. BY ADV. SRI.HARISANKAR V. MENON RESPONDENT(S): APPELLANT/DEFENDANT: -------------------------------------------------------------------- M/S.BBL FOODS PVT.LTD., AT 171-382/A/A1, SANTHOSH NAGAR CROSS ROAD,HYDERABAD,ANDHRA PRADESH, REPRESENTED BY BALVINDAR PAL SINGH(DIED), PRESENT MANAGING DIRECTOR, LAKHBIR MUTCHELL. BY ADV. SRI.K.S.BHARATHAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss N.K. BALAKRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 580 OF 2010 = = = = = = = = = = = = = = = Dated this the 4th day of April, 2011. O R D E R The plaintiff in O.S.328/00 on the file of the Sub Court, Irinjalakuda is the petitioner herein. The suit was filed by him for realisation of a sum of Rs.1,76,110/- from the defendant. It was stated that the defendants refused to accept the summons hence they were set exparte. The exparte decree was passed against the defendant on 29.1.2011. The plaintiff filed execution petition in July 2002 for executing the decree. It was stated that in the execution petition notice was affixed on the premises of the defendant and then only they came to know of the decree passed against them. It was contended that the application was filed by the defendants as I.A.2151/03 to set aside C.R.P. NO. 580 OF 2010 -:2:- the exparte decree along with I.A.2149/03 to condone the delay by filing an application. The period of delay shown in that application was 921 days. The application was resisted by the claimant. The trial court after considering the evidence adduced by the parties dismissed the application to condone the delay and consequently the petition to set aside the exparte decree was also dismissed. As against the same the defendants filed CMA 3/04. The learned Additional District Judge, Thrissur allowed the appeal, setting aside the exparte decree passed against the defendants. 2. In this revision petition the learned counsel for the petitioner/plaintiff would submit that the petition to set aside the exparte decree was filed after inordinate delay without offering any reason whatsoever. It is C.R.P. NO. 580 OF 2010 -:3:- an admitted case of the defendant that in 2002 itself they came to know of the decree passed against them when notice in the execution petition was affixed on the factory premises of the defendant. Learned counsel would also submit that an undertaking was given by the defendant before the execution Court stating that they will pay off the decree debt but contrary to the undertaking given by them after more than one year an application was filed to set aside the exparte decree. 3. Learned counsel for the revision petitioner would draw the attention of the Court to the evidence given by PW1 who was examined in the application to condone the delay. As per that defendants had come to know about the exparte decree in the year 2002 itself but the application to condone the delay was filed only C.R.P. NO. 580 OF 2010 -:4:- on 10.7.2003. No plausible reason was offered by the defendant to condone the delay in filing the application to set aside the exparte decree. Sri. Bharathan, the learned counsel appearing for the defendant/respondent submitted that the defendant has got a valid contention that there was no privity of contract between the plaintiff and the defendant in the suit, and that the contract was entered into by the plaintiff with another company/concern and that the defendant is in no way connected with the contract mentioned in the suit. This contention has been taken strong exception to by the learned counsel for the plaintiff. Had it been a case that the decree passed by the trial court is not binding on the defendant that objection could have been raised at the earliest point of time and not more than 1½ years after the notice was affixed C.R.P. NO. 580 OF 2010 -:5:- on the factory premises of the defendant. 4. Learned counsel for the defendant would submit that they are ready to deposit the entire decree amount before the Court below. The learned counsel for the plaintiff would submit that the suit was filed in 2000, and almost 11 years have elapsed and so the request may not be entertained. Learned counsel further submits that even if it is assumed that the defendant Company has changed its name that will not absolve its liability to pay the decree debt. The very fact that the application to set aside the exparte order was filed only in July 2003 according to the plaintiff, would show the lack of bonafides. 5. The learned counsel for the defendant would submit that Ext.A9 letter sent by the defendant to the plaintiff was taken note of by C.R.P. NO. 580 OF 2010 -:6:- the trial Court as per which the Company expressed its readiness to pay the decree debt and as such it is a futile exercise on the part of the defendant to now contend that the defendant is not liable to pay the decree debt. 6. The learned counsel for the defendant would submit that since the entire decree amount will be deposited before the Court below no prejudice will be caused to the plaintiff; otherwise it would amount to denial of opportunity to the defendant to contest the matter. Simply because the defendant has offered to deposit the decree amount the Court should not be persuaded to set aside the exparte decree if sufficient reason is not given by the defendant to set aside the same or to condone the delay in the application to file the petition. The plaintiff would contend that the C.R.P. NO. 580 OF 2010 -:7:- trial court was justified in dismissing the applications to condone the delay and to set aside the exparte decree filed after years of passing of the decrees and the appellate court was not justified in setting aside the orders passed by the trial court. 7. Though the conduct of the defendant may appear to be contumacious since it is always better to have the cases adjudged on merits I think it would be just and proper to give the defendant an opportunity to contest the suit but it can be allowed only on strict conditions. 8. The delay in filing the application to set aside the exparte decree and the application to set aside the exparte decree would stand allowed on condition that the defendant pays an amount of Rs.10,000/- as cost to the plaintiff directly or through his counsel appearing in C.R.P. NO. 580 OF 2010 -:8:- this Court on or before 11.4.2011. 9. The defendant deposits a sum of 2½ lakhs before the trial court on or before 25.5.2011. If the above said two conditions are complied with the exparte decree passed against the defendant will stand set aside in which event the Court below will try to dispose of the suit as expeditiously as possible at any rate on or before 11.8.2011. This C.R.P. is disposed of as above. Sd/- N.K. BALAKRISHNAN,JUDGE. ul/- [ true copy ] P.A. to Judge.