IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 FAO.No. 139 of 2009() --------------------- I.A.231/09 & I.A.232/09 IN OS.75/2006 of SUB COURT, MUVATTUPUZHA .................... APPELLANTS/PETITIONERS/DEFENDANTS ------------------------------------------------------------ 1. GEORGE, S/O.ULAHANNAN, KADAMKULATHIL HOUSE, AYAVANA KARA, ENANELLOOR, MUVATTUPUZHA. 2. WILSON, S/O.GEORGE - DO- -DO- BY ADV. SRI.C.DILIP SRI.K.C.KIRAN RESPONDENT(S): RESPONDENT/PLAINTIFFF -------------------------------------------------------------- STATE BANK OF INDIA, REP.BY ITS BRANCH MANAGER, VAZHAKULAM BRANCH. ADV. SRI.GEORGE THOMAS (MEVADA)(CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 139 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009. JUDGMENT Bhavadasan, J, State Bank of India instituted a suit for money against the second defendant. They sought to realise a sum of Rs. 2,65,512/-. The allegation was that the second defendant, after taking a demand draft for a sum of Rs.2,50,000/- from the Bank, applied for cancellation of the same stating that the original draft was lost. After canceling the draft the amount was credited in the account of the second appellant. Later on it was found that the original draft was encashed. Pointing out that the Bank had been taken for a ride, they sought to recover the money. 2. According to the defendants, on getting summons, they had engaged Adv. Reji Paul to defend them. They firmly believed that the Advocate concerned would take all the necessary steps to defend the case and would also FAO.139/2009. 2 inform them about the subsequent postings. 3. It so happened that on the day on which the suit was posted for trial, the defendants were not present. After following the necessary formalities an ex-parte decree was passed. 4. Defendants filed two petitions, ie., I.A. 231 of 2009 and I.A.232 of 2009, one to set aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure and the other to condone the delay of 715 days in filing the other application. They averred that they had engaged a counsel to defend them and they bonafide believed that their case will be taken care of by the said counsel. It was at a later stage that they came to know that an ex- parte decree had been passed against them. They approached the same counsel, who promised to take the necessary steps. On 2.2.2009 they were served with notice for settlement of proclamation and then they realised that no steps had been taken by the counsel engaged by them either to defend the suit or to get it restored. According to the defendants, there was no wilful laches FAO.139/2009. 3 or negligence on their part and the ex-parte decree happened to be passed under the circumstances already made mention of. So, the petition to condone the delay and the petition to set aside the ex- parte decree. They pointed out that they have serious contentions to be urged in the suit and unless the ex-parte decree is set aside and the matter decided on merits, irreparable loss and injury will be caused to them. 5. The respondent Bank resisted the petitions. They pointed out that there was no sufficient reasons or cause shown, to have the ex-parte decree set aside. They pointed out that the defendants received summons and had appeared before court on 6.7.2006. They had sought time for filing written statement. There were several adjournments at the instance of the counsel for the defendants. Ultimately they were set ex-parte and the suit was decreed on 17.1.2007. According to the respondent-plaintiff, the defendants in the suit deliberately kept away from court and the present attempt is only to drag the proceedings. The court below FAO.139/2009. 4 on a consideration of the materials before it found that the petitioners have not been successful in justifying their absence in court, which led to the passing of the ex-parte decree. 6. As per the order of this court, it is seen that the appellants have already deposited Rs.1,50,000/- before court. It needs to be noticed that the definite stand taken by the defendants was that they had engaged a counsel to defend their case. That they had engaged a counsel is admitted by the plaintiff in the suit. The plaintiff has stated that several adjournments were sought for filing the written statement. The defendants on the other hand would say that they had not received any information from their counsel and they were under the bonafide impression that necessary steps were being taken by the counsel. 7. It could not be said that there was any deliberate omission on the part of the defendants. They have urged that they have serious contentions in the suit and pray that the suit be decided on merits. The act of depositing Rs.1,50,000/- shows their FAO.139/2009. 5 bonafide intention to contest the suit. Under such circumstances, it is felt that the appellants should be given an opportunity to put forward their case and have the suit decided on merits. May be, strictly speaking, the grounds urged for setting aside the ex-parte decree and for condoning the delay in filing the petition are not acceptable, but the interests of justice demand that the appellants be provided an opportunity. In the result, this appeal is allowed, the impugned order is set aside and the suit will stand restored to file and the court below is directed to dispose of the suit in accordance with law. P.R. Raman, Judge P. Bhavadasan, Judge sb.