Roy Vijayan And Ors vs Catholic Syrian Bank Ltd

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.

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.

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.

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.

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.

Heard counsel for the appellants and the counsel for the respondent.

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.

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 1st 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.

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.

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.

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.