Kerala High Court
Dr. Roy Vijayan vs The Catholic Syrian Bank Ltd on 17 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
FAO.No.77 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 526/2011 OF I ADDITIONAL SUB
COURT, KOZHIKODE
APPELLANT/S:
1 DR. ROY VIJAYAN,
AGED 59 YEARS
S/O.DR.N.VIJAYAN, 19/865, PRASANNA, INDIRA GANDHI
ROAD, P.O.PARAYANCHERY, KOZHIKODE-673016.
2 RAJESH VIJAYAN,
AGED 56 YEARS
S/O.DR.N.VIJAYAN, 19/865, PRASANNA, INDIRA GANDHI
ROAD, P.O.PARAYANCHERY, KOZHIKODE-673016.
BY ADVS.
SRI.JAGAN ABRAHAM M.GEORGE
SRI.JAISON ANTONY
RESPONDENT/S:
THE CATHOLIC SYRIAN BANK LTD.
KOVOOR BRANCH, REPRESENTED BY ITS MANAGER, NELLIKODE
AMSOM, KOVOOR DESOM, KOZHIKODE-673008.
R1 BY ADV. SRI.C.A.JOY
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10-
02-2021, THE COURT ON 17-02-2021 DELIVERED THE FOLLOWING:
FAO No.77 OF 2020 2
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
-------------------------------------------------
F.A.O No. 77 of 2020
--------------------------------
Dated this the 17th day of February 2021
JUDGMENT
P.V.Kunhikrishnan, J
This first appeal is filed against the order dated 3.3.2020 in I.A.
Nos. 985/2019 and 986/2019 in O.S.No.526/2011 on the file of the 1st
Addl.Sub Judge, Kozhikode. I.A.No.985/2019 is a petition filed under
Sec.5 of the Limitation Act for the condonation of delay in filing a
petition to set aside the ex-parte decree passed in O.S.No.526/2011.
2. The appellants are the defendants in O.S.No.526/2011.
The suit was filed by the respondent for realisation of money. The
appellants were set ex-parte in the suit and the ex-parte decree was
passed on 8.12.2011. Thereafter, the appellants filed two applications
as I.A.No.985/2019 and I.A.No. 986/2019 before the lower court.
I.A.No.985/2019 was filed to condone the delay of 2698 days in filing
the petition to set aside the ex-parte decree, which was numbered as
I.A.No.986/2019.
3. The main contention of the appellants in the delay
condonation petition is that they did not receive any summons in the
suit and hence, they could not engage any lawyer. According to the
appellants, they came to know about the ex-parte decree only on
20.5.2019. Hence, there is a delay of 2698 days in filing the petition
to set ex-parte. According to the appellants, there was no laches on
their part in appearing before the lower court. They contended that
the summons in the suit was not properly served to them.
4. The respondent-Bank filed objection to the petition stating
that the appellants were issued summons from the court and the
appellants were having knowledge about the suit. According to the
respondent-Bank, there is laches on the part of the appellants.
5. To substantiate the case, PW1 and PW2 were examined on
the side of the appellants. RW1 was examined on the side of the
respondent and Exts.B1 to B7 were also marked. Exts.C1 and C2 were
marked as court exhibits. After going through the evidence and the
documents, the trial court found that there is no proper explanation
for the delay in filing the petition to set aside ex-parte decree.
Consequently, the delay petition and the petition to set aside ex-parte
decree was dismissed. These orders are challenged in this appeal.
6. Heard counsel for the appellants and the counsel for the
respondent.
7. The counsel for the appellants submitted that there is no
laches on part of the appellants in filing the petition to set aside ex-
parte decree. The counsel submitted that the facts are narrated in
detail in the delay condonation petition and the appellants adduced
oral evidence also to substantiate the same. According to the counsel,
the summons was not served to the appellants directly. Admittedly,
the appellants were not available at the address. The counsel
submitted that the appellants have got serious contentions and
therefore, in the interest of justice, the above applications may be
allowed.
8. The counsel for the respondent submitted that the
contentions of the appellants are without any bonafide. A counter
affidavit is filed by the respondents, disputing the averments in the
appeal memorandum. The counsel for the respondent submitted that
there is a delay of 7 years and 140 days in filing the petition under
Order 9 Rule 13 CPC to set aside the ex-parte decree. According to
the counsel, there is yet another suit also filed against the very same
appellants by the bank as O.S.No.527/2011 before the 1 st Addl.Sub
Court, Kozhikode and the said suit also decreed ex-parte on
15.11.2011. In that suit also, a petition was filed to set aside the ex-
parte decree with a petition to condone the delay. The said petitions
were also dismissed by the court below and as on the date of filing the
counter affidavit, the above order became final.
9. According to the counsel, EP No. 95/2019 is pending in
O.S.No. 526/2011 and posted for enquiry as to the means of judgment
debtors. The execution petition in O.S.No. 527/2011 is also posted for
enquiry as to the means of judgment debtors. The counsel reiterated
the contentions raised before the lower court in their counter
affidavit.
10. It is true that there is laches on the part of the appellants.
We perused the applications and the evidence available in this case.
Admittedly, the summons in the suit was not served to the appellants
personally. PW2 was the postman, who went for delivery of Exts.C1
and C2, registered summons. He admitted that Exts.C1 and C2 are
the two registered covers entrusted with him for delivery on
10.10.2011. He deposed that he visited the house of the addressee on
10.10.2011 with Exts.C1 and C2. The addressee was out of the station
on that date, as per the remark written on Exts. C1 and C2. On that
day, he did not give any intimation. Thereafter, he again visited the
premises on 14.10.2011 with the registered covers. On that day also,
the addressee was absent. He had given intimation on that day. He
deposed that there was nobody available in the house. Exts.C1 and C2
show that on 15.10.2011 also, the addressee was absent. PW2
deposed that the intimation would be written on slip and put inside
the house through the window. After intimation, usually registered
covers would be kept in the post office for one week. On 15.10.2011,
he gave the letters to the postmaster.
11. From the evidence of PW1 and PW2, it is clear that the
summons was not served to the appellants personally. It is also clear
that the appellants were not available when PW2 visited the house to
serve Exts.C1 to C2. Of course, there is a long delay of 7 years and
140 days in filing the petition to set aside the ex-parte decree.
According to the appellants, they came to know about the ex-parte
decree only when notice is received in the execution petition on
20.05.2019. We are not satisfied with the explanation given by the
appellants. But the counsel for the appellant submitted that the
appellants have got serious contentions in the suit and an opportunity
may be given to them to contest the suit on merit. Hence considering
the entire facts and circumstances, we feel that an opportunity can be
given to the appellants to contest the case on merits. Of course, this
can be ordered only on the condition that the appellants will pay an
amount of Rs.5,000/- (Rupees Five Thousand only) as cost to the
Kerala State Mediation and Conciliation Centre.
Therefore, this appeal is allowed in the following manner :
1) The common order dated 3.3.2020 in I.A.Nos.
985/2019 and 986/2019 in O.S. No. 526/2011 on the
file of the 1st Addl.Sub Judge, Kozhikode is set aside
on condition that the appellants will pay an amount of
Rs.5,000/- as the cost to the Kerala State Mediation
and Conciliation Centre, Ernakulam within four weeks
from today.
2) If the receipt of payment of the above amount as
ordered in condition No.1 is produced along with this
judgment, the learned 1st Additional Subordinate
Judge will restore O.S.No. 526/2011 and dispose the
same on merit, in accordance with the law.
sd/-
A.HARIPRASAD
JUDGE
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
