Allowed

Rajapalayam Cement & Chemicals Ltd. v. Augustin Joseph

Kerala HC25 Jul 2018FAO/139/2017

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal seeking to set aside an ex parte money decree. The Court conditioned this relief on the appellant depositing the decree amount within six weeks to allow the suit to be heard on merits before the civil court.

What did the court decide?

The appellant is allowed to set aside the ex parte decree provided it deposits the decree amount within six weeks.

Rajapalayam Cement & Chemicals Ltd. Vs Augustin Joseph — Execution and Attachment | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE A.HARIPRASAD

¶4

WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940

¶5

FAO.No. 139 of 2017

¶6

AGAINST THE COMMON ORDER DATED 28-02-2017 IN I.A NO.863 OF 2016 AND I.A NO.864 OF 2016 IN O.S NO.253 OF 2012 ON THE FILE OF THE SUB COURT, KATTAPPANA.

¶7

APPELLANT/PETITIONER/1ST DEFENDANT :

¶8

RAJAPALAYAM CEMENT & CHEMICALS LTD REPRESENTED BY ITS DIRECTOR T.VENKARAGOPALAN, AGED 58 YEARS,S/O.THOTTATHIRI IYENGAR, RAJAPALAYAM, TAMILNADU STATE.

¶9

BY ADVS.SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K. SRI.JOBI.A.THAMPI SMT.M.KABANI DINESH SRI.C.M.EBRAHIM SRI.SHOUKATH HUSAIN SMT.PRIYANKA SEBASTIAN.

¶10

RESPONDENT/RESPONDENT/PLAINTIFF :

¶11

AUGUSTIN JOSEPH, S/O JOSEPH, AGED 76 YEARS,ATTIPETTIL HOUSE, KALLNTHAL VILLAGE, NEDUMNKADOM KARA, UDUMBANCHOLA TALUK,PROPRIETOR, KERALA TRADING COMPANY,NEDUMKANDAM.

¶12

BY ADV. SRI.LIJI.J.VADAKEDOM

¶13

THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

A.HARIPRASAD, J.

¶15

F.A.O No.139 of 2017

¶16

Dated this the 25th day of July, 2018

¶17

J U D G M E N T

¶18

Heard the learned counsel on both sides.

¶19

The appeal is against the common order passed by the Court of

¶20

Sub Judge, Kattappana, on I.A Nos.863 and 864 of 2016 in O.S No.253 of

¶21

¶22

Appellant is the first defendant in the above suit. Respondent is

¶23

the plaintiff therein. The suit is one for recovery of money. The suit was

¶24

decreed ex parte on 18-10-2013. Thereafter, the appellant preferred an

¶25

application under Order IX Rule 13 of the C.P.C to set aside the ex parte

¶26

decree along with an application under Section 5 of the Limitation Act,

¶27

F.A.O No. 139 of 2017 2

¶28

1963, to condone delay of 1085 days in filing the application.

¶29

By a common order, the court below dismissed both the

¶30

applications finding that there is no merit in the claim of the appellant.

¶31

Learned counsel for the appellant submitted that the appellant,

¶32

being a company, was in financial difficulties. It was undergoing proceedings under the BIFR for rehabilitation of the industrial unit. The proceedings are over now. According to the appellant's counsel, unless the matters are decided on merits, the company will suffer irreparable loss and

¶33

injury. According to the learned counsel on both sides, the decree amount

¶34

comes to Rs.5,88,820/- with accrued interest thereon.

¶35

Learned counsel for the respondent submitted that there is no

¶36

material on record to show that the impugned orders are legally incorrect.

¶37

Therefore, the learned counsel seriously opposed the averments in the

¶38

appeal memorandum.

¶39

F.A.O No. 139 of 2017 3

¶40

This suit is for realization of money only. Having regard to the

¶41

facts and circumstances, I find that the appellant can be given an

¶42

opportunity to contest the matter on merit provided the appellant shows its

¶43

earnestness before the court below.

¶44

In the result, the appeal is allowed on condition that the appellant

¶45

shall deposit the decree amount before the court below, within a period of six weeks from today. In that event, the court below shall set aside the

¶46

ex parte decree and dispose of the matter on merits within a further period

¶47

of three months.

¶48

Parties are directed to appear before the court below on 13-08-2018.

¶49

All pending interlocutory applications will stand closed.

¶50

A. HARIPRASAD,

¶51

JUDGE.

¶52

amk

Rajapalayam Cement & Chemicals Ltd. v. Augustin Joseph

Case brief

What is this about?

What did the court decide?

Rajapalayam Cement & Chemicals Ltd. v. Augustin Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.T.Mary Vs Vayalali Pavithran

Janaki Menon Vs Dineshkumar

Puthen Peedikakkal Rabia Umma Vs the District Collector, Malappuram

K.J.Cherry Babu Vs S.Shahjahan

V N Gopalakrishnan Nair Vs M K Radhakrishnan

Paulose Vs Roy Abraham