IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 FAO.No. 38 of 2008() -------------------- AGAINST THE ORDER DATED 18/12/2007 IN IA 2533/07 IN OS.366/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. M/S. RANI DRUG HOUSE, NELLAI, REP. BY ITS MANAGING PARTNER JOJU THOMAS, S/O. THOMAS, NELLAI DESOM, THRISSUR DISTRICT. 2. JOJU THOMAS, MANAGING PARTNER, RANI DRUG HOUSE, NELLAI DESOM, THRISSUR DISTRICT. 3. JOHN THOMAS, PARTNER, RANI DRUG HOUSE, NELLAI DESOM, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- P.MAGHAN MAL AND SONS CO. WLL, POST BOX NO.173, MANAMA KINGDOM OF BAHARIN, REP. BY ITS MANAGING DIRECTOR, GITA RAJKUMAR BHATTIA, W/O. LATE RAJ KUMAR YILKAM DAS, MANAMA, KINGDOM OF BAHARIN. ADV. SRI.P.B.SAHASRANAMAN FOR R1 SRI.K.JAGADEESH FOR R1 SRI.T.S.HARIKUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 38 OF 2008 -------------------------------------------------------- Dated 18th August 2009 Judgment BHAVADASAN, J. Aggrieved by the order dated 18.12.2007 in IA No.2533/07 in OS No.366/06 the petitioners before the court below have come up in appeal. By the said order, the court below set aside the ex parte decree on condition that the petitioners pay Rs.25,000/- towards travelling expenses of the plaintiff and also deposit a sum of Rs.2,00,434/- towards costs. 2. The suit was one for money. It was instituted by the Managing Partner of P.Maghan Mal & Sons, situated in the middle east. Petitioners 2 and 3 are partners of the 1st petitioner herein. Amount was due to the defendants towards purchase of certain articles to the tune of 37,470/- US Dollars. The plaintiff had already paid the amount on condition that the defendants shall supply the necessary goods. When the defendants defaulted in supplying the goods, the amount was demanded back. Since the amount was not paid, the suit was instituted. FAO 38/08 2 3. The defendants resisted the suit and had filed a written statement. But when the suit was taken up for consideration, the counsel for the defendants reported no instruction and an ex parte decree was passed on 30.07.2007. 4. Thereafter, the defendants preferred IA No.2533/04 for setting aside the ex parte decree and having the suit heard on merits. In the affidavit filed in support of the petition, they pointed out that the defendants had gone to Delhi in connection with their business and returned only on 08.08.2007. They did not get the post card stated to have been sent by their counsel. 5. The respondents submitted that there was no bona fide in the claim made by the plaintiff. It was pointed out that no document whatsoever were produced to show that the defendants had gone to Delhi. 6. The court below found that there was nothing to show that the claim made by the defendants was true and there was no reason as to why he could not atleast give instructions to his counsel. But the court below felt that an opportunity should be given to them to have the case heard on merits and the FAO 38/08 3 petitioners were directed to deposit the expenses and also the costs. On that basis, the impugned order was passed. 7. At the time of admission of this appeal, this court granted interim stay on condition that the petitioners deposit a sum of Rs.50,000/- on or before 18.2.2008 before the court below. The appellants have not deposited the said amount and accordingly, the interim order was vacated. 8. It needs to be noticed that on application made by the petitioners before the court below, the ex parte decree was set aside on condition. One cannot omit to note that the counsel for the petitioners before the court below had represented no instruction and there is no reason as to why the petitioners before the court below could not inform the counsel about their non-availability when the case was listed for trial. 9. The court below has stated that on 28.5.2007, the parties were informed that the suit would be listed to 23.7.2007. 10. If that be so, as rightly noticed by the court below, the claim that the defendants came to know that fact only on 8.8.2007, cannot be accepted. The non-compliance of the order FAO 38/08 4 of this court by the appellants shows that there are no bona fides in the matter. In the circumstances of the case, it does not appear to be necessary for this court to interfere with the order of the court below. The appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 38/08 5