IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 FAO.No. 259 of 2006() --------------------- AGAINST THE ORDER IN IA 5951/05 IN OS.813/2000 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/PETITIONERS 1 AND 2/DEFENDANTS 1 AND 2: ------------------------------------------------------------------------------------ 1. V.T. JOSEPH, AGED 50, S/O.THOMAS, VALLIKAD VEETTIL, AVALUKUNNU, CHEMMANTHARA DESOM, ALAPPUZHA VILLAGE & TALUK. 2. ELEYAKUTTY, W/O. JOSEPH, VALLIKKAD VEETTIL, AVALUKUNNU, CHEMMANTHARA DESOM, ALAPPUZHA VILLAGE & TALUK. BY ADV. SRI.ROY VARGHESE RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------ RESMI HIRE PURCHASE (P) LTD., REP. BY ITS CHAIRMAN, OLLUR, THRISSUR. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.P.SANTHOSH (PODUVAL) FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 259 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2009. JUDGMENT Raman, J, This is an appeal against an order refusing to condone the delay in filing the application to set aside the ex-parte decree passed against the defendants-appellants and consequent dismissal of the same. 2. The appellants are defendants 1 and 2 and the respondent is the plaintiff in O.S. 813 of 2000 on the file of the Principal Sub Court, Thrissur. The suit is one for realisation of an amount of Rs.3,41,413/- with 18% interest on the principal sum of Rs.2,88,600/-. The suit itself is based on a hire purchase agreement between the parties. In the suit the defendants- appellants appeared and filed written statement. But subsequently on 17.1.2004 when the matter was taken up for evidence, they were absent and they were set ex-parte after recording the evidence of the plaintiff and decree was passed on 19.1.2004. The appellants filed the present application stating that they had valid contentions FAO.259/2006. 2 raised in the suit, that they came to know of the ex-parte decree only when the notice in the execution petition was received. The delay happened in such circumstances and they sought to condone the long delay of 648 days in filing the petition. They also filed a separate application for stay of the execution proceedings. 3. The respondent in the counter affidavit denied the averments made in support of the petition. According to them, there is no truth in the averment made in the affidavit. On 17.1.2004 the first petitioner/first defendant is stated to have been present at the veranda of the Sub Court during roll call and when the suit had been taken up, the defendant wilfully abstained from entering the court hall. The junior Advocate reported no instruction. Then the defendant was set ex-parte and the suit was decreed on 19.1.2004. It is not correct to say that the defendants did not know of the ex-parte decree or that they came to know of it only on receipt of notice in the execution petition. It is also contended that in connection with the same transaction there is a criminal case against one Santhosh Kumar under Section 138 of the Negotiable Instruments Act before the Magistrate Court. In that case, FAO.259/2006. 3 the first defendant was a witness to Santhosh Kumar. The written statement filed by the defendants in the suit was produced and marked by the first defendant in that criminal case. The same Advocate appeared for Santhosh Kumar in that case also. Hence it is not correct to say that the petitioners were not aware of the ex-parte decree. Steps were taken to realise the amount by attaching the property of the second defendant. It is only to delay the proceedings that the present application is filed. 4. The evidence consists of oral testimony of P.W.1 and R.W.1. No documentary evidence was produced in the case. 5. The plaintiff is a financial institution. The averment in the plaint is that loan of Rs.3,60,000/- was availed by the first defendant for purchase of a van bearing Registration No. KL-8/H.7738. Second petitioner is the wife of the first petitioner. Second petitioner and one V.M.Thomas were the guarantors for the loan. As per the agreement, the amount has to be paid with hire purchase charge by 48 instalments starting from 28.10.1996 and ending on 28.9.2000. Defaults were committed in the matter of payment of 22nd instalment FAO.259/2006. 4 onwards. Subsequently Santhosh Kumar and the first petitioner came to the office of the plaintiff Company and Santhosh Kumar issued a cheque for Rs.2,00,000/- for clearing the arrears, which was subsequently dishonoured. Then Section 138 proceedings under the Negotiable Instruments Act was taken and the Company filed a further suit for realisation of the amount from the defendants. V.M.Thomas was set ex-parte. Therefore only the petitioners-appellants were the contesting defendants. When the case was originally posted to 17.10.2003, at the instance of the appellants, an application was moved for removal of the suit from the list, and was posted to 20.10.2003. When it was submitted that connected criminal case is pending before the Judicial First Class Magistrate Court, again the matter was posted to 17.1.2004. Thought the plaintiff was ready to adduce evidence, the defendants reported no instruction and he was set ex-parte and decree was passed. The first petitioner as P.W.1 deposed that his counsel, M.P.Sreenivasan did not inform him about the date of hearing of the suit and he was unaware of the posting of the case on 17.1.2004 and 19.1.2004. He was not informed of the ex-parte decree when he was FAO.259/2006. 5 examined as a witness in the criminal case. He would say that he came to know of the ex-parte decree only on 26.3.2005 and would submit that he approached M.P.Sreenivasan, Advocate and gave blank papers signed for filing petition for setting aside the ex-parte decree, which however was not done. That is how the delay occurred. 6. D.W.1 on the other hand deposed that on 17.10.2003 he was present in the court as also the first petitioner. It is his definite case that he talked to the first respondent in the varendha on 17.1.2004 and when his case was taken up, he entered the court hall but the first respondent did not enter the court hall. According to him, the first respondent wilfully abstained from appearing in court even though he was available in the locality. This is only an attempt to drag on the proceedings without any decision. On the materials available on record, the court below came to the irresistable conclusion that the explanation offered for condonation of delay is not only unsatisfactory but untrue also. The court below was not prepared to accept that the appellants came to know of the ex-parte decree only when notice in the execution proceedings was received. Further the connected criminal FAO.259/2006. 6 case was pending and he had appeared in that case as witness. Since the very same Advocate appeared in that case also and during his examination the lawyer would have informed him about the ex-parte decree. So atleast on that day certainly his Advocate would have told him about the ex-parte decree. This shows that the petitioners have no bonafides but were guilty of deliberate non-appearance from the court. 7. On an appreciation of the evidence adduced by both sides, it cannot be said that the conclusion drawn based on the assessment of the evidence by the court below is in any way perverse or unreasonable. In such circumstances, the appellants have not made out a case for interference with the order of the court below. The appeal is dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.