IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 FAO.No. 19 of 2009() -------------------- I.A.1487/07, 1488/07 & 1489/07 IN OS.41/2007 of SUB COURT, MANJERI .................... APPELLANT/PETITIONER/DEFENDANT: ------------------------------------------------------ ANIL BABU ,S/O.HAMEED HAJI ANIIKKATTIL HOUSE, THAZHEKKOD AMSOM DESOM PERINTHALMANNA TALUK. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ DR.BINOY K.GEORGE S/O.A.K.GEORGE, PARAMBOTTIL HOUSE, THACHAMBARA AMSOM DESOM. ADV. SRI.K.MOHANAKANNAN FOR R1 SMT.A.R.PRAVITHA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 6/07/2009, THE COURT ON 13.7.2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 19 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2009. JUDGMENT Bhavadasan, J, The defendant suffered an ex-parte decree for money. He thereafter filed interlocutory applications namely, I.A. 1487 of 2007 to condone the delay of 45 days in filing the petition to set aside the ex-parte order, I.A. 1488 of 2007 to set aside the ex- parte decree and also I.A. 1489 of 2007 to condone the delay in filing the written statement in O.S. 41 of 2007. The petitions were dismissed. Those orders are challenged in this appeal. 2. The suit was one for money. As per the plaint allegations, the defendant had borrowed a sum of Rs.30,00,000/- from the plaintiff promising to repay the same within two months. Defendants had repaid a sum of Rs.24,30,000/-. Thereafter an agreement was entered into between the parties, whereby the defendant undertook to repay the balance amount in three instalments. He also issued two cheques drawn on HDFC Bank, Perinthalmanna. The cheques were presented, but they were F.A.O.19/2009. 2 returned for want of funds. It is seen that the plaintiff had initiated proceedings under Section 138 of the Negotiable Instruments Act also. Since the repayment of the amount due to the plaintiff was not made by the defendant as undertaken by him, the suit was laid. 3. The defendant had entered appearance through a counsel and the case was posted to 5.6.2007 for filing the written statement. It is claimed by the defendant that soon thereafter he met with an accident and was unable to meet his counsel and to give him necessary instructions. Therefore, he was set ex parte and decree was passed. According to the defendant in the suit, his non-appearance was not due to any wilful laches or omission on his part, but due to reasons beyond his control. Pointing out that unless the ex parte decree is set set aside and the matter is decided on merits, he would be put to irreparable loss and injury. He prayed that the suit be re-heard. 4. The claim of the petitioner before the court below was resisted by the defendant, who is the plaintiff in the suit. According to him, the reasons stated by the defendant are false and it is only a ruse adopted by the defendant to drag on the proceedings. F.A.O.19/2009. 3 5. On going through the records and also the order of the court below, it is to seen that the only ground based on which the ex parte decree was sought to be set aside was that the petitioner before the court below had met with an accident and he was laid up for a long time. He had taken this as as a ground for not appearing after 5.6.2007 also. He has stated that he had met with an accident on that day. He would say that due to the unfortunate incident he could not meet his counsel and give instructions. 6. If true, the above reason would have been a good ground to have the ex-parte decree set aside. But unfortunately for the defendant, he was unable to establish the claim made by him. As rightly noticed by the court below, if as a matter of fact the appellant had suffered an accident and to undergo prolonged treatment, there would have been some records to prove the same. It is also seen that on 5.6.2007 counsel appearing for the petitioner had stated that the written statement will be filed during the course of the day. When the matter came up before the court on 26.7.2007 for raising issues, it is seen that no written statement was filed. It is significant to notice that F.A.O.19/2009. 4 the order of the court below does not say that on the particular day either the petitioner or his counsel was present. Even assuming that the petitioner was indisposed, there was no reason as to why no representation was made by his counsel. If his claim is that he had met with an accident and was undergoing treatment, surely he would have produced the records with him. There was no reason as to why none of them were produced. It was the above facts and circumstances which have persuaded the court below to dismiss the petitions. Before this court also no documents have been produced by the petitioner to substantiate his claims. The result is that the appeal is without merit and it is liable to be dismissed. Accordingly, the appeal is dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.