Kerala High Court
Prem Dhanapalan vs Mahima.S on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY,THE 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA,1943
F.A.O.NO. 118 OF 2020
AGAINST ORDER DATED 26.02.2020 IN I.A.NOS.943 OF 2019 AND
944 OF 2019 IN O.S.NO.92 OF 2015 OF THE PRINCIPAL SUB
COURT, KOLLAM
APPELLANT:
PREM DHANAPALAN
AGED 47 YEARS,
S/O LATE DHANAPALAN PANICKER, RESIDING AT
VRINDAVAN NAGAR-106, KADAPPAKKADA,
KOLLAM-691 008.
BY ADV HARISH GOPINATH
RESPONDENT:
MAHIMA.S
AGED 39 YEARS
W/O LAIJU, RESIDING AT BIJU NIVAS,
JAYAN NAGAR-39, THEVALLY P.O.
KOLLAM-691 301.
BY ADVS.
SRI.S.SUDHEESHKAR
SRI.C.UNNIKRISHNAN (KOLLAM)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
FINAL HEARING ON 03.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
F.A.O.No.118 of 2020
JUDGMENT
Ajithkumar, J.
The defendant in O.S.No.92 of 2015 on the file of the
Principal Sub Court, Kollam, is the appellant. He challenges
the orders in I.A.Nos.943 and 944 of 2019 filed by him in the
said suit.
2. The suit was filed by the respondent for a decree of
specific performance. The agreement for sale was executed
between the appellant and the respondent on 14.11.2014, as
per which, the plaint schedule property was agreed to be sold
for a sale consideration of Rs.30 lakhs. The respondent
contended that Rs.18 lakhs was paid on the said day and Rs.2
lakhs in two later instalments to the appellant, totaling Rs.20
lakhs towards advance sale consideration. Since the appellant
defaulted to perform his part of the contract, the suit was laid.
3. The appellant resisted the suit by filing a written
statement. He contended that the agreement for sale was
executed just as a security when he borrowed Rs.10 lakhs as
loan. He stated that he borrowed from the respondent
F.A.O.No.118 of 2020
Rs.50,000/- each on two occasions as well.
4. The suit was decreed in the absence of the
appellant on 25.10.2018 allowing specific performance of the
contract. The respondent filed an execution petition. It was in
the meantime the appellant filed I.A.No.944 of 2019 under
Order IX, Rule 13 of the Civil Procedure Code, 1908 for
setting aside the exparte decree along with I.A.No.943 of
2019 under Section 5 of the Limitation Act seeking to condone
the delay of 390 days. The learned Sub Judge dismissed both
the applications.
5. On appearance of the respondent both sides were
heard on 26.2.2021 and execution of the decree was stayed
by this Court as per order in I.A.No.1 of 2020. The stay order
has been extended from time to time and is in force. The
appellant produced two documents and the respondent
produced four documents for reference in this appeal.
6. Heard the learned counsel for the appellant and the
learned counsel for the respondent.
7. It is seen from the order of the learned Sub Judge
F.A.O.No.118 of 2020
in I.A.No.943 of 2019 that the appellant did not produce any
document to support his contention that his mother was
undergoing treatment for cancer. The learned Sub Judge did
not believe the averments in the affidavit of the appellant and
proceeded to dismiss the application. Consequently,
I.A.No.944 of 2019 was also dismissed.
8. The learned counsel appearing for the appellant
submits that on account of the discord in the marital
relationship of the appellant and the stress on account of the
treatment of his mother, he was unable to concentrate on
other personal matters. It is further pointed out that the
appellant had got a good defence in the suit, but he could not
contest because of his personal inconveniences. Now, relying
on Annexures A1 and A2 documents, the appellant submits
that there was sufficient cause for his failure to appear in
court and to apply for setting aside the exparte decree on
time.
9. The learned counsel appearing for the respondent,
on the other hand contended that even after getting notice on
F.A.O.No.118 of 2020
the execution petition, the appellant failed to take any action
in the matter. It was only after the respondent depositing the
balance sale consideration in terms of the decree, the
appellant came forward with the interlocutory applications. He
therefore contended that laches on the part of the appellant is
writ large and the impugned orders do not suffer from any
infirmity.
10. Annexure A1 document would show that the
mother of the appellant has been undergoing treatment for
cancer since 2015. Annexure A2 would go to show that the
appellant was also undergoing treatment from mid
September, 2018.
11. Having heard the learned counsel on both sides
and considering Annexures A1 and A2 documents, we are of
the view that there was sufficient cause for the non-
appearance of the appellant in the suit when it was taken up
for trial and also for the delay occurred in filing the
applications under Order IX, Rule 13 of the Code. Therefore,
the appeal is liable to be allowed.
F.A.O.No.118 of 2020
12. Annexures R1(a) to R1(d) would show that the
respondent deposited Rs.5,04,354/- in Kilikolloor Branch of
Kollam District Co-operative Bank for the discharge of debt
due from the appellant, which he availed by mortgaging the
plaint schedule property. It is also seen that the respondent
deposited Rs.2,10,841/- in court towards balance sale
consideration. When the respondent deposited those amounts
as per the directions of the executing court, it is only just and
proper for his getting back those amounts, once the decree is
set aside.
13. The delay and default on the part of the appellant
were on account of the reasons beyond his control.
Notwithstanding that, the inconveniences caused to the
respondent as a result of setting aside the decree has to be
compensated. We are of the view that Rs.10,000/- is the
sufficient cost for setting aside the decree. Accordingly, this
appeal is allowed and the decree dated 25.10.2018 in
O.S.No.92 of 2015 is set aside subject to the following
conditions:
F.A.O.No.118 of 2020
(1) The appellant shall pay Rs.10,000/- towards cost to the
respondent, within three weeks; and
(2) On payment to the respondent Rs.5,04,354/- within one
month; both from the date of receipt of a copy of this
judgment in the Principal Sub Court, Kollam.
14. On satisfying the above conditions, the learned
Principal Sub Judge, Kollam will take back O.S.No.92 of 2015
on file and proceed with the suit in accordance with law, and
also permit the respondent to withdraw Rs.2,10,841/-, which
he deposited as per the directions of the court. It is made
clear that failure to satisfy any of the above conditions will
result in automatic cancellation of the effect of this judgment.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
F.A.O.No.118 of 2020
APPENDIX
APPELLANT'S ANNEXURES
ANNEXURE A1 CERTIFICATE DATED 18.09.2021 ISSUED BY
A.A.RAHIM MEMMORIAL DISTRICT HOSPITAL,
KOLLAM TO LALITHA DHANAPAL.
ANNEXURE A2 CERTIFICATE DATED 18.09.2021 ISSUED BY
DR.RADHAKRISHNAN M.P. TO THE
PETITIONER.
RESPONDENT'S ANNEXURES
ANNEXURE R1(A) TRUE COPY OF THE CERTIFICATE ISSUED BY
THE DEPUTY GENERAL MANER OF THE
ATTACHING CREDITOR BANK OF THE
ATTACHING CREDITORBANK SHOWING THE
REMITTANCE OF RS.5,04,354/- RUPEES
FIVE LAKHS AND FOUR THOUSAND THREE
HUNDRED AND FIFTY FOUR ONLY) AND
CLOSURE OF THE LOAN ACCOUNT.
ANNEXURE R1(C) TRUE COPY OF THE DECREE DATED
25.10.2018 IN O.S.NO.92 OF 2015
AWARDING COST OF RS.2,84,805/- (RUPEES
TWO LAKHS EIGHT FOUR THOUSAND EIGHT
HUNDRED AND FIVE ONLY)
ANNEXURE R1(D) TRUE COPY OF THE RECEIPT FOR
RS.2,10,841/- (RUPEES TWO LAKHS TEN
THOUSAND EIGHT HUNDRED AND FORTY ONE
ONLY) DATED 27.03.2019 DEPOSITED IN
O.S.92 OF 2015 AS BALANCE SALE
CONSIDERATION.
