IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 12TH NOVEMBER 2009 / 21ST KARTHIKA 1931 WA.No. 2428 of 2009 -------------------------------- AGAINST THE JUDGEMENT IN WPC.16697/2009 Dated 11/08/2009 .................... APPELLANTS/PETITIONERS ---------------------------------------- 1. M/S.SUMMER SAND HILL RESORT & AYURVEDIC CENTRE, VAGAMON, VAGAMON P.O., IDUKKI DISTRICT. 2. JACOB MATHEW, KAVUMKAL HOUSE, VELLOOR P.O., PAMPADY, KOTTAYAM, NOW RESIDING AT "550", STAFFORD RUN # 505, SUIT NO.505, STAFFORD, TAXES, U.S.A. 3. ANNAMMA MATHEW, KAVUMKAL HOUSE, VELLOOR P.O., PAMPADY, KOTTAYAM, NOW RESIDING AT "550", STAFFORD RUN # 505, SUIT NO.505, STAFFORD, TAXES, U.S.A. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENTS/RESPONDENTS -------------------------------------------- 1. STATE BANK OF INDIA, ADB, CHANGANACHERRY, CHANGANACHERRY, KOTTAYAM DISTRICT, KERALA. 2. KERALA FINANCIAL CORPORATION, REPRESENTED BY ITS CHIEF MANAGER, KOTTAYAM BRANCH, BRANCH OFFICE, M.C.ROAD, Y.W.C.A., KOTTAYAM. BY STANDIG COUNSEL SRI.K.K.CHANDRAN PILLAI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A. No.2428 of 2009 ------------------------------------------ Dated this the 12th day of November, 2009 JUDGMENT S.R.Bannurmath, C.J. This writ appeal is filed against the judgment of the learned Single Judge dated 11th August, 2009, directing the appellants to deposit 10% of the claim amount as a condition precedent for setting aside the ex parte decree. 2. The appellants who were borrowers against whom proceedings were initiated before the Debts Recovery Tribunal, were set ex parte for their absence. On filing of application for setting aside the ex parte decree and for stay, vide Ext.P1, the Debts Recovery Tribunal imposed a condition to deposit 10% of the claim amount. Aggrieved by the same, when they approached the Appellate Tribunal, it not only affirmed the order of the Debts Recovery Tribunal, but also doubled the amount of deposit, namely instead of 10% it was enhanced to 20% of the claim amount. 3. Aggrieved by the said order, when the appellants approached this Court in the present writ petition, considering the fact that the Appellate Tribunal was not justified in directing the W.A. No.2428 of 2009 - 2 - appellants to deposit 20% instead of 10% of the claim amount which was in fact, not challenged by the other side and as such interfered with the Appellate Tribunal's order, so far as the conditional deposit of 20% of the claim amount is concerned, and directed the appellants to deposit 10% of the claim amount as originally directed by the Debts Recovery Tribunal. 4. Aggrieved by the same, the writ petitioners are before us in this writ appeal, inter alia, contending that the condition imposed for restoration of their status by setting aside the ex parte decree is illegal. It is contended that, at the most, some heavy costs ought to have been imposed by the learned Single Judge instead of insisting upon deposit of 10% of the claim amount. 5. The law on this aspect has been considered by the learned Single Judge in detail, with reference to imposition of costs. On going through the same and especially noting the fact that the Honourable Supreme Court has specifically held in Union of India and another v. Sree Ganesh Steel Rolling Mills Ltd. and another [(1996) 8 SCC 347] that before granting orders in respect of financial matters, it will be just and proper to impose a condition for deposit, W.A. No.2428 of 2009 - 3 - and if not the entire amount, a percentage of the amount should be insisted, to find out the bona fides of the person approaching the Court. We find that the order of the learned Single Judge directing the appellant to deposit 10% of the claim amount as a condition precedent for setting aside the ex parte decree appears to be just and proper and needs no interference. 6. Hence we find no merit in the writ appeal and it is accordingly dismissed. However, at this stage, learned counsel for the appellants prays for some more time to deposit the amount as the learned Single Judge has granted only one month from the date of the judgment and that period is over. Considering the facts and circumstances of the case, we grant three weeks from today to the appellants to deposit 10% of the claim amount. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns