IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 FAO.No. 276 of 2010 ---------------------------- [OS.NO.341/2002 OF SUB COURT, MAVELIKKARA] .................... APPELLANT/1ST PETITIONER/1ST DEFENDANT: --------------------------------------------------------------------- D.SUNDARESAN, S/O. DIVAKARAN, CHITHRA BHAVAN, K.K.N.NAGAR, KIZHE KALLEYAM, KARAKULAM P.O., THIRUVANANTHAPURAM-43. BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. RESPONDENTS/RESPONDENT& 2ND PETITIONER/PLAINTIFF & 2ND DEFENDANT: ---------------------------------------------------------------------------------------------------------------------- 1. ART LEASING LIMITED, ART CHAMBERS, GOVT. HOSPITAL JUNCTION, M.C.ROAD, CHENGANNUR, REPRESENTED BY POWER OF ATTORNEY HOLDER, K.S.BALARAMAN NAIR, USHUS, ALA P.O., CHENGANNUR, PATHANAMTHITTA DISTRICT – 689 126. 2. S. SASIKUMAR, S.M. NIVAS, ANAYARA.P.O., THIRUVANANTHAPURAM – 696 029. R1 BY ADV. SRI.N.ASHOK KUMAR, THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ FAO No.276 of 2010 ------------------------------------------------------------------------ Dated 18th October 2010 Judgment Bhavadasan, J. OS No.341/02 before the Sub Court, Chengannur was a suit for money against two persons. It related to a hire purchase loan in relation to a tipper lorry bearing registration no.KL-1/B-7983. The second defendant in the suit was the guarantor for the financial arrangement between the plaintiff and the first defendant. It appears that the suit was decreed ex parte allowing the plaintiff to realise a sum of Rs.5,31,949/- with future interest @ 24% per annum on the principal amount of Rs.2,73,600/- from the date of suit till realisation. 2. The defendants filed two applications namely IA Nos.239/08 and 240/08, to have the ex parte decree against them, set aside and also to condone the delay in filing the application to set aside the ex parte decree. According to them, they had not received summons from FAO No.276/10 2 the Court and therefore, they did not appear. They say that they have strong contentions to urge before Court. 3. Since the defendants were absent and they were not represented, the court below dismissed IA No.239/08 by order dated 13.08.2008. Consequently, the application to set aside the ex parte decree was also dismissed. The said order is assailed in this appeal. 4. There is nothing to indicate that there was any deliberate act on the part of the defendants in not appearing before the court below on the date when IA No.239/08 was posted. The defendants have stated that they have very strong contentions to urge in reply to the plaintiff's claim and that the decree was obtained without actually serving summons on them. They had also filed a petition to set aside the ex parte decree and to condone the delay. 4. Considering the facts and circumstances of the case, it is felt that an opportunity ought to have been given to the defendants to have the applications filed by them, heard on merits, since it is improper for the court FAO No.276/10 3 below to have dismissed IA No.239/08 for default. However, it cannot be said that there was absolutely no laches on the part of the defendants. If at all any injury is caused to the plaintiff, that may be compensated by awarding costs. 5. In the result, this appeal is allowed. The impugned order is set aside and IA Nos.239/08 and 240/08 are restored to file on condition that the petitioner before this court pays to the counsel for the respondent herein a sum of Rs.5,000/- (Rupees Five Thousand only) within two weeks from today. The court below is directed to dispose of those applications in accordance with law as expeditiously as possible. Sd/- THOTTATHIL.B.RADHAKRISHNAN, JUDGE Sd/- P.BHAVADASAN, JUDGE sta Certified that the appellant has paid Rs.5,000/- (Rupees Five Thousand only) as costs to the counsel for the respondent in compliance of the direction contained in the judgment dated 18.10.2010 in FAO No.276/10 vide memo c.f.7385/10. Sd/- Registrar (Judicial) FAO No.276/10 4