Allowed

India Cements Capital & Finance Ltd. v. Raghunathan.K.

Kerala HC4 Oct 2012FAO/180/2012

Case brief

AI extract

What is this about?

The High Court allowed the first appeal setting aside the dismissal of an application to set aside an ex parte decree in a money suit. The court directed reconsideration of an arbitration plea before final determination and imposed a cost condition.

What did the court decide?

Impugned orders setting aside application, and ex parte decree in O.S. No.118/2007 set aside on condition of payment of Rs. 3,000 costs.

India Cements Capital & Finance Ltd. Vs Raghunathan.K. — Arbitration | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934

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FAO.No. 180 of 2012 ()

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IA.NO.3998/2009 IN OS.118/2007 of PRL.SUB COURT,TRIVANDRUM

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APPELLANT/DEFENDANT:

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INDIA CEMENTS CAPITAL & FINANCE LTD. (NOW KNOWN AS INDIA CEMENTS CAPITAL LIMITED) MENATHODU CHAMBER, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY G.RADHAKRISHNAN, GENERAL MANAGER.

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BY ADV. DR.GEORGE ABRAHAM

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RESPONDENT/PLAINTIFF:

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RAGHUNATHAN.K. KRISHNA BHAVAN, T.C.27/1481, CONVENT ROAD, THIRUVANANTHAPURAM - 695001.

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R BY ADVS. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.T.SAPROO SRI.MAHESH ANANDAKUTTAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 04-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Thottathil B.Radhakrishnan

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A.V.Ramakrishna Pillai, JJ.

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= = = = = = = = = = = = = = = = = = = = = = = =

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F.A.O.No.180 of 2012

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= = = = = = = = = = = = = = = = = = = = = = = =

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Dated this the 4th day of October, 2012.

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Judgment

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Thottathil B.Radhakrishnan, J.

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1.The defendant in a suit for money is the appellant. It is a financier. It is submitted that the objection of the defendant to the suit was that there was an arbitration agreement. Unfortunately, the counsel it had engaged died. Ultimately, the suit was decreed ex parte. Defendant traced out the files and filed an application seeking condonation of delay and for setting aside the ex parte decree. That stands dismissed.

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2.Hearing the learned counsel for parties, we are of the view that the matter requires an adjudication after giving the defendant an opportunity of hearing. If the plea of the availability of an arbitration clause has to be

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FAO180/12 -: 2 :-

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considered, that has to be done at the first instance. Either way, the ex parte decree has to go. However, that can be only on terms.

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In the result, this appeal is allowed setting aside the orders impugned and the ex parte decree passed in O.S.No.118 of 2007 on condition that the appellant pays the respondent through the learned counsel appearing for him before this Court an amount of `3,000/- (Rupees three thousand only) as costs within two weeks from now. The parties are directed to mark appearance before the court below on 6.11.2012.

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Sha/061012

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Certified that the appellant has paid ` 3,000/(Rupees three thousand only) as costs to the learned counsel for the respondent in compliance of the direction contained in the judgment dated 04/10/2012 in F.A.O.180/2012, vide memo c.f.5893/2012 dated 22/11/2012.

India Cements Capital & Finance Ltd. v. Raghunathan.K.

Case brief

What is this about?

What did the court decide?

India Cements Capital & Finance Ltd. v. Raghunathan.K.

Case brief

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What did the court decide?

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