IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRP.No. 1171 of 2004 ---------------------- ( CMA.169/2003 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM IA NOS. 1456, 1457 & 1458 OF 2003 IN O.S.NO. 498 OF 2000, II ADDL.SUB COURT,ERNAKULAM ) REVN. PETITIONER/APPELLANT/PETITIONER/DEFENDANT ------------------------------------------------ S.K.MANDAL, AGED 48, S/O. LATE TRIVENI MANDAL, RESIDING AT BLOCK NO.1, G.ROAD, ANILSUR PATH, NEW RIVER VIEW COLONY, KADMA, JAMSHEDPUR - 831 005. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR ADV. SRI.P.VISWANATHAN RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF --------------------------------------------- M/S. JOINDRE CAPITAL SERVICES LTD., FIRST FLOOR, LAKSHMI CHAMBERS, OPP.MANAVATTI, M.G.ROAD, ERNAKULAM - 682 635. BY ADV. SRI. JACOB CHACKO THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO. 2880 OF 2004 IN C.R.P.NO. 1171 OF 2004 DISMISSED. 01.04.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ............................................................................ C.R.P.No.1171 OF 2004 ............................................................................ Dated this the 1st April, 2008 O R D E R The defendant in O.S.No. 498 of 2000 on the file of the court of the II Addl. Sub Judge, Ernakulam is the revision petitioner. The suit was filed by the respondent for realisation of a sum of Rs. 1,33,222.63/-. The plaintiff is a share broker. It is alleged in the plaint that as per the defendant's instructions, the plaintiff transacted business through its Jamshedpur branch for and on behalf of the defendant. The amount claimed in the plaint, according to the plaintiff, represents the amount due from the defendant on account of such transaction. The address of the defendant, as shown in the plaint, is his Jamshedpur address. The plaintiff is a limited company, having its registered office at Mumbai and having a branch office at Jamshedpur. In paragraph '9' of the plaint, it is stated that the transaction took place at Ernakulam and that the cause of action arose at Ernakulam. 2. The suit was decreed ex parte on 25.11.2000. The defendant filed I.A.No.1458 of 2003 to set aside the ex parte decree and I.A.No. 1457 of 2003 to condone the delay of 814 days in filing the application for setting aside the ex parte decree. According to the defendant, he came to know of the suit and the decree only on 21.12.2002 when he received notice in the Execution Petition. The decree was transmitted to the Sub Court, Jamshedpur for execution. 3. The respondent/plaintiff filed objections in the application and contended that summons was served on the defendant and it was accepted by him. The contention of the defendant that he came to know of the suit only on 21.12.2002 is false; the address shown in the summons is the correct address of the defendant, C.R.P.No.1171 OF 2004 2 contended the plaintiff. 4. It is averred by the defendant in the affidavit that he is working at Jamshedpur and that his wife is mentally ill. The notice in the Execution Petition was signed by the wife of the defendant. 5. The trial court dismissed the application holding that summons was served on the defendant and there was wilfull negligence on his part in absenting himself from the court. 6. The petitioner/defendant challenged the order of the trial court in C.M.A.No. 169 of 2003 on the file of the court of the Addl. District Judge (Adhoc-I) Ernakulam. The appellate court confirmed the order of the trial court . 7. Heard counsel for the parties. Perused a copy of the plaint made available to me and also perused the order and judgment passed by the court below. Learned counsel for the revision petitioner submitted that the plaints in two other similar suits filed by the same plaintiff in which similar cause of action was put forward were returned on the ground that Ernakulam court has no territorial jurisdiction. Learned counsel also submits that no transaction took place at Ernakulam. He submitted that except in paragraph 8 of the plaint where there is a vague averment that the transaction took place at Ernakulam, there is no clear averment in the plaint as to the place at which the transaction took place. He also pointed out that the head office of the plaintiff is at Mumbai and that there is only a branch office of the plaintiff at Ernakulam. The defendant does not belong to Kerala. 8. In the facts and circumstances of the case, I am of the view that to meet the ends of justice, it is necessary to afford an opportunity to the petitioner to contest the suit . It cannot be said that there was no negligence or laches on his part. It cannot C.R.P.No.1171 OF 2004 3 also be said that the courts below were absolutely wrong in holding so against the petitioner. But the facts and circumstances of the case, as mentioned above, would persuade me to think that this is a case where a decision on the merits would be necessary. At the same time, the ex parte decree is not liable to be set aside un- conditionally. The order of the trial court and the judgment of the appellate court , which are impugned in this Revision would stand set aside on condition that the petitioner shall either deposit before the court below a sum of Rs. 75,000/- within a period of two months or deposit the amount in a nationalised bank having its branch office at Ernakulam and produce the Fixed Deposit receipt before the court below. If the petitioner produces the Fixed Deposit receipt, the court below shall ensure that the amount is not disbursed without the orders of the court. If the petitioner complies with the direction to deposit or to make available the Fixed Deposit receipt as above, the court below shall afford an opportunity to the petitioner to file a written statement within 15 days from the last date fixed for deposit of the amount. Since the suit is of the year 2000, the trial court shall expedite the disposal of the suit. The Civil Revision Petition is disposed of as above. K.T. SANKARAN, JUDGE. lk