Kerala High Court
Kurien Mathew vs Medkare on 2 August, 2021
OP(C).1119/21 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
OP(C) NO. 1119 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 239/2015 OF II ADDITIONAL
SUB COURT,ERNAKULAM, ERNAKULAM
PETITIONER/S:
1 KURIEN MATHEW
AGED 52 YEARS
S/O.KURIEN MATHEW, KALATHIL PUTHEN PURAYIL HOUE,
PALLARIMANGALAM P.O., MAVELIKARA, ALAPPUZHA - 690
107.
2 MARY KURIAN
AGED 48 YEARS
W/O.KURIYAN MATHEW, KALATHIL PUTHEN PURAYIL HOUSE,
PALLARIMANGALAM P.O., MAVELIKARA, ALAPPUZHA - 690
107.
BY ADVS.
ASWIN GOPAKUMAR
ANWIN GOPAKUMAR
NIRANJAN SUDHIR
KANDAMPULLY VIKRAM
PRAFUL SURENDRAN
RESPONDENT/S:
MEDKARE
CC 48/506E, SITARAM BUILDINGS, NEAR BHAVANS SCHOOL,
DESHABHIMANI ROAD, ELAMAKKARA P.O., ERNAKULAM -
682026.
BY ADV SREELAL N.WARRIER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).1119/21 2
V.G.ARUN, J.
-----------------------------------------------
O.P(C).No. 1119 of 2021
-----------------------------------------------
Dated this the 2nd day of August, 2021
ORDER
The defendants in O.S.No.239 of 2015 on the files of the
Second Additional Subordinate Judge's Court, Ernakulam has filed
the original petition aggrieved by Exhibit P8 order, dismissing their
application for review of the order directing them to furnish security
as a condition for setting aside the ex parte decree. The suit is filed
by the respondent for recovery of a sum of Rs.26,50,000/- allegedly
to be due towards the advance paid to the petitioners under an
agreement for sale dated 8.5.2015. The respondent has also
claimed pre-suit, pendente lite and future interest at the rate of
12% on the principal amount. The petitioners entered appearance
and filed written statement contending that they are not liable to
pay any amount and on the contrary, it was the respondent that
had committed material breach of the agreement terms, which
resulted in the petitioners sustaining loss. The suit was listed for
trial on 10.11.2016. The petitioners being absent on that day, set
ex parte and the original suit decreed with costs. On being served
with notice in the execution proceedings initiated by the
respondent, the petitioners filed Exhibit P4 application for setting
aside the ex parte decree. The delay in filing Exhibit P4 application
was condoned and Exhibit P5 order passed, allowing the prayer for
setting aside the ex parte decree, on condition of the petitioners
furnishing security for Rs.39 lakhs by way of cash or FD receipt or
by way of immovable property having value of Rs.39 lakhs within
two weeks from 19.1.2021. The petitioners failed to comply with
the direction and instead, filed the review petition seeking
extension of time.
2. Heard Sri.Aswin Gopakumar, learned counsel for the
petitioners and Sri.Sreelal N. Warrier, learned counsel for the
respondent.
3. Learned counsel for the petitioners submitted that, having
allowed the prayer for setting aside the ex parte decree, the court
below should have granted more time for furnishing security. The
time granted being inadequate, the petitioners had initially moved
an application for extension under Section 148 CPC and as directed
by the Court, had withdrawn the application and filed the review
petition. It is contended that by reason of Exhibit P8 order, the
petitioners are being denied the opportunity to contest the suit on
merits. It is submitted that all throughout the petitioners had been
trying for a reasonable settlement with the respondent, which
unfortunately did not fructify. According to the learned counsel, the
delay in filing the application for setting aside the ex parte decree
was because of the ongoing discussions and also due to the ailment
of the 2nd petitioner.
4. Learned counsel for the respondent pointed out that the
suit is of the year 2015 and the ex parte decree was passed way
back in 2016. The petitioners had filed the application for setting
aside the ex parte decree only on 24.10.2019, that too after
receiving notice in E.P.No.11 of 2019 filed by the respondent. There
is a delay of 979 days in filing the petition for setting aside the ex
parte decree. The petitioners had filed E.A.No.798 of 2019 praying
to keep the execution proceedings in abeyance till a decision is
taken on the petition for setting aside the ex parte decree.
E.A.No.798 of 2019 was allowed subject to the Judgement Debtors
depositing the decreed amount in the execution court within two
days. It is submitted that the said condition has not been complied
with till date. In spite of such non-compliance, the court below
condoned the delay of 979 days and allowed the petition for setting
aside the ex parte decree on condition of the petitioners furnishing
security for Rs.39 lakhs within two weeks. That condition was also
not complied with and instead, the petitioners sought review of the
order. In such circumstances, the court below was fully justified in
dismissing the review application. No extraordinary circumstance,
warranting interference under the supervisory jurisdiction of this
Court, is made out by the petitioners.
5. The undisputed facts reveals that the suit filed on
8.11.2015 was decreed ex parte on 11.11.2016. The respondent
initiated execution proceedings in the year 2018 and till date, has
not been successful in realising the decreed amount, despite orders
requiring the petitioners to deposit the amount even after three
years. The order in E.A.No.798 of 2019, requiring the petitioners to
deposit the decree amount and the condition in Exhibit P5 order,
directing the petitioners to furnish security, have so far not been
complied with. In my considered opinion, despite the defaults, one
more opportunity can be granted to the petitioners, subject to the
petitioners proving their bona fides by paying a portion of the
decretal amount to the respondents.
In the result, Exhibit P8 order is set aside, subject to the
petitioners paying an amount of Rs.10 lakhs to the respondent
within one month. If the amount is paid and receipt produced
along with this judgment within one month, the court below shall
set aside the ex parte decree and allow the petitioners to contest
the suit on merits. It is made clear that this direction is based on
equity alone and the court below shall decide the suit
untrammelled by the observations herein.
The original petition is disposed of as above.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 1119/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN
O.S.NO.239/2015 ON THE FILE OF THE
HON'BLE II ADDITIONAL SUBORDINATE JUDGE'S
COURT, ERNAKULAM.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE DEFENDANT IN O.S.NO.239/2015
ON THE FILE OF THE HON'BLE II ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM.
Exhibit P3 A TRUE COPY OF THE AD INTERIM CONDITIONAL
ORDER OF ATTACHMENT BEFORE JUDGMENT DATED
12/11/2015 IA 4639/15 IN O.S.NO.239/2015
ON THE FILE OF THE HON'BLE II ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM.
Exhibit P4 A TRUE COPY OF I.A.NO.3380/2019 IN
O.S.NO.239/2015 ON THE FILE OF THE
HON'BLE II ADDITIONAL SUBORDINATE JUDGE'S
COURT, ERNAKULAM.
Exhibit P5 A TRUE COPY OF THE ORDER IA 3380/19 IN OS
239/15 DATED 19/01/2021 OF THE HON'BLE II
ADDITIONAL SUBORDINATE JUDGE'S COURT,
ERNAKULAM ALLOWING EXT.P4.
Exhibit P6 A TRUE COPY OF I.A.NO.1/2021 IN
I.A.NO.3380/2019 ON THE FILE OF THE
HON'BLE II ADDITIONAL SUBORDINATE JUDGE'S
COURT, ERNAKULAM.
Exhibit P7 A TRUE COPY OF THE APPLICATION UNDER
SECTION 114 READ WITH ORDER XLVII RULE 1
AND SECTION 151 OF THE CODE OF CIVIL
PROCEDURE, 1908 TO REVIEW THE ORDER DATED
19/01/2021.
Exhibit P8 A TRUE COPY OF THE ORDER DATED 29/03/2021
IN R.P.6/2021 IN IA 3380/19 IN OS.239/15.
