National Small Industries ... vs K. Renjith Bose
2023 Latest Caselaw 3818 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                             &
     THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                    FAO NO. 132 OF 2022
       [O.S.NO.978/2012 OF PRINCIPAL SUB COURT,PALAKKAD]
  [AGAINST THE ORDER DTD.25.10.2017 IN IA NO.1817,1818,1816 &
 1819/2015 IN OS NO.978/2012 OF PRINCIPAL SUB COURT,PALAKKAD]
APPELLANT/APPELLANT/PLAINTIFF:

         NATIONAL SMALL INDUSTRIES CORPORATION LTD.
         (GOVERNMENT OF INDIA ENTERPRISES), S-67, GCDA
         COMMERCIAL COMPLEX, SHANMUHAM ROAD, MARINE
         DRIVE, KOCHI, REPRESENTED BY ITS SENIOR BRANCH
         MANAGER D. PAUL BRIGHT SINGH.

         BY ADVS.
         SABU THOZHUPPADAN
         JOHN ALWIN K.
         V.K.KISHOR
         ANTONY VARGHESE
         BIJU THOZHUPPADAN
         DEVI P. PRATHAPAN
         ASHNA ALOYSIUS P.
         AJWIN P LALSON
         ANOOJ K SUDHARMAN
         AMRUTHA P.M.
         MANJU LUCKOSE


RESPONDENT/RESPONDENT/DEFENDANT:

         K. RENJITH BOSE, AGED 36 YEARS,
         S/O.K.K. BOSE, PROPRIETOR, M/S. SRI.KRISHNA
         RUBBER INDUSTRIES, 117/FFF, IDUKKUPARA,
         MATHALAMADA VILLAGE, CHITTOOR TALUK, PALAKKAD -
         678507, RESIDING AT KOTTAPPURAM HOUSE,
         PANAYILIKKARA, MANIKKAMANGALAM, KALADY,
         ERNAKULAM, PIN - 683 575

         BY ADV T.O.XAVIER.


    THIS FIRST APPEAL FROM ORDERS HAVING COME UP
FOR ADMISSION ON 30.03.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 FAO NO.132 OF 2022

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                           JUDGMENT

Shoba Annamma Eapen,J:

Appellant is the plaintiff in O.S.No.978/2012 on

the file of the Principal Sub Court, Palakkad. The suit was

filed for recovery of an amount of Rs.49,14,838/- together

with interest. The suit was dismissed on 10.9.2013 for not

remitting process batta for serving summons on the

respondent. Thereafter, the plaintiff filed I.A.No.797/2014

to restore the suit. There was a delay of 117 days in filing

I.A.No.797/2014. Hence the plaintiff filed I.A.No.796/2014

to condone the delay of 117 days. Both I.A.Nos. 796/2014

and 797/2014 were dismissed for default on 25.11.2014.

2. Thereafter, the plaintiff again filed

I.A.No.1817/2015 to restore I.A.No.797/2014, which was

dismissed on 25.11.2014. There was a delay of 630 days in

filing I.A.No.1817/2015. Hence, the plaintiff filed

I.A.No.1818/2015 to condone the delay of 630 days in filing

I.A.No.1817/2015. Similarly I.A.No.1819/2015 was filed to

restore I.A.No.796/2014, which was dismissed on FAO NO.132 OF 2022

..3..

25.11.2004, along with I.A.No.1816/2015 to condone the

delay of 630 days in filing I.A.No.1819/2015.

3. The court below, after consideration of the facts of

the case, dismissed I.A.Nos.1817/2015, 1818/2015,

1819/2015 and 1816/2015 in O.S.No.978/2012 on

25.10.2017 by separate orders. Aggrieved by the said

orders in above I.As., the appellant has filed this appeal.

4. Heard the learned counsel for the appellant as well

as the learned counsel for the respondent.

5. The suit was filed for recovery of mortgage money

with interest to the tune of Rs.49,14,838/-. The

appellant/plaintiff- Corporation is a Government of India

Enterprise. The defendant, who is the proprietor of an

S.S.I unit, started the business of tread rubber, by availing

a business loan, for the purpose of purchase of

machineries. The defendant, though agreed to pay the

amount in instalments, defaulted the payment and hence,

the plaintiff was forced to file the above suit for recovery of

the amount.

FAO NO.132 OF 2022

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6. Learned counsel for the appellant submitted that

due to hectic official schedule, the appellant could not

appear before the court below and take steps on time. The

appellant came to know about the dismissal of the suit only

when he contacted his counsel at Palakkad and thus,

occurred a delay of 630 days in filing the application for

restoration. The learned counsel for the appellant submits

that the appellant was not properly informed about the

proceedings by the counsel appearing before the court

below and huge amount is due from the

respondent/defendant and the appellant may be given one

more opportunity to contest the suit on merits. The learned

counsel for the respondent resisted the appeal by

contending that there is huge delay in prosecuting the

matter. The appeal itself was filed with a delay of 1730

days. It was further submitted that the appellant does not

deserve any indulgence to be shown.

7. We have perused the documents filed along with

the appeal. The suit was originally filed in the year 2012. FAO NO.132 OF 2022

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On a perusal of the documents produced, it is seen that

admittedly there were laches on the part of the appellant

in properly prosecuting the case before the court below.

The delay in filing this appeal was condoned on payment of

costs of Rs.10,000/- by the appellant. Pending appeal, the

parties were referred for mediation, but the matter was

not settled. Huge amount is due from the defendant

towards the loan advanced for the business purpose and

the appellant being a Government of India Enterprise, the

loss is caused to the public exchequer.

8. We are of the opinion that one last opportunity can

be given to the appellant to contest the matter on merits.

The laches occurred on the part of the appellant can be

compensated by the payment of costs.

Accordingly, the appeal is allowed. The orders

dated 25.10.2017 in I.A.Nos. 1817/2015, 1818/2015,

1819/2015 and 1816/2015 in O.S.No.978/2012 on the file of

the Principal Sub Court, Palakkad are set aside. The

appellant is directed to pay an amount of Rs.5,000/- FAO NO.132 OF 2022

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(Rupees five thousand only) as costs, to the counsel

appearing for the respondent/defendant before this court,

within a period of two weeks from the date of receipt of a

copy of this judgment and produce receipt before the court

below. On payment of such costs and production of the

receipt as above, original suit shall be restored to file. The

parties are directed to appear before the court below on

23rd May, 2023. It is made clear that if the appellant fails

to comply with the above conditions, the appellant shall

not get the benefit of this judgment.

sd/-

A.MUHAMED MUSTAQUE, JUDGE

sd/-

SHOBA ANNAMMA EAPEN, JUDGE

MBS/ FAO NO.132 OF 2022

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APPENDIX OF FAO 132/2022

PETITIONER'S ANNEXURES:-

Annexure A1 TRUE COPY OF PLAINT IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A2 TRUE COPY OF I.A.NO.797/2014 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A3 TRUE COPY OF I.A.NO.796/2014 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A4 TRUE COPY OF I.A.NO.1817/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A5 TRUE COPY OF I.A.NO.1818/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A6 TRUE COPY OF I.A.NO.1819/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A7 TRUE COPY OF I.A.NO.1816/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A8 TRUE COPY OF OBJECTION I.A.NO.1817/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A9 TRUE COPY OF OBJECTION I.A.NO.1818/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A10 TRUE COPY OF OBJECTION I.A.NO.1819/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD FAO NO.132 OF 2022

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Annexure A11 TRUE COPY OF PROOF AFFIDAVIT FILED BY KALIYARASAN, MANAGER (LAW) OF APPELLANT COMPANY IN I.A.NO.1818/2015 AND I.A,NO.1816/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A12 CERTIFIED COPY OF ORDER DATED 25/10/2017 IN I.A.NO.1817/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A13 CERTIFIED COPY OF ORDER IN I.A.NO.1818/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A14 CERTIFIED COPY OF ORDER IN I.A.NO.1819/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A15 CERTIFIED COPY OF ORDER IN I.A.NO.1816/2015 IN O.S.NO.978/2012 OF PRINCIPAL SUB COURT, PALAKKAD

Annexure A16 COMPUTER GENERATED COPY OF JUDGMENT DATED 22/09/2022 IN O.P.(C) NO.

2904/2018 OF THIS HON'BLE COURT