Dismissed

M/S. D.K. Ayur Heritage Health v. P. Beno Chacko

Kerala HC12 Jan 2018FAO/202/2017

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an FIAO appeal challenging the trial court's refusal to set aside an ex parte decree and condone a significant delay (1128 days). The court held that the appellants failed to plead negligence by counsel or inability to receive summons in their initial applications, and mere absence abroad did not justify the delay. The appeal was thus rejected.

What did the court decide?

The appeal against the trial court's order dismissing the application to set aside the ex parte decree and condone delay is dismissed.

M/S. D.K. Ayur Heritage Health Vs P. Beno Chacko — Execution and Attachment | Kerala HC (2018)

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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 P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939

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FAO.No. 202 of 2017 (AGAINST I.A NOS.182/2017 & 193/2017 IN O.S.NO.360/2013 ON THE FILES OF THE ADDITIONAL SUB JUDGE, KOTTAYAM DATED 07.12.2017)

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APPELLANT(S)/DEFENDANTS

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1 M/S. D.K. AYUR HERITAGE HEALTH CENTRE PVT LTD., REGD OFFICE AT 120/1, CHAMPAKULAM VILLAGE, PONGA P.O, ALAPPUZHA, REPRESENTED BY THE MANAGING DIRECTOR G SATHISH C. DUTT, POORNANDU, SANATHANAM WARD, ALAPPUZHA.

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2 M/S. D.K AYUR HERITAGE VILLAGE AND REACTORS PVT LTD., REGD. OFFICE AT 120/1,CHAMPAKULAM VILLAGE, ALAPPUZHA REPRESENTED BY THE MANAGING DIRECTOR, G.SATHISH C. DUTT.

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3 G. SATHISH C. DUTT, S/O.LATE V.S GOVINDA DUTT, POORNANDU, SANATHANAM WARD, ALAPPUZHA.

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BY ADVS.SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN

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RESPONDENT(S)/PLAINTIFF:

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P.BENO CHACKO, S/O.JOSEPH CHACKO, BINO VILLA, PERUNNA, CHANGANASSERY,

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R1 BY ADV. SRI.MANU ROY

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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F.A.O.No.202 of 2017

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Dated this the 12^th day of January, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellants are the defendants in O.S.No.360 of 2013 on the file of the Court of Additional Subordinate Judge of Kottayam, a suit instituted by the sole respondent as plaintiff for realization of the sum of 28,40,000/- together with interest and₹ costs. The suit was decreed ex parte by judgment delivered on 30.11.2013. Several months later the appellants filed I.A.No.182 of 2017 to set aside the said ex parte decree accompanied by I.A.No.193 of 2017 to condone the delay of 1128 days in filing the former application. By order passed on 07.12.2017, the trial court dismissed the said application. Hence this appeal.

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The proceedings paper in O.S.No.360 of 2013, a copy of which was called for by us and perused, discloses that the suit stood posted for return of summons on 16.11.2013. On that day, as there was no sitting, the suit was adjourned to 21.11.2013. The defendants who were by then served, did not enter

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FAO.No.202/2017

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appearance. Consequently, they were set ex parte and the suit was adjourned to 28.11.2013 for payment of the balance court fee and for the plaintiff's evidence. On that day as the learned trial judge was on leave, there was no sitting and the suit was adjourned to 30.11.2013. On that day on the plaintiff payed the balance court fee and filed an affidavit in lieu of chief examination. After hearing learned counsel appearing for the plaintiff, the trial court decreed the suit with costs. The appellants did not file an application to set aside ex parte decree in time. Several months later they filed I.A.No.182 of 2017 to set aside the ex parte decree passed in this suit. Along with the said application they filed I.A.No.193 of 2017 to condone the delay of 1128 days in filing the application to set aside the ex parte decree. In the affidavit filed in support of both the applications the case set out by the 3^rd appellant (3^rd defendant) who is the Managing Director of appellants 1 and 2 is that, being a business man he could not file a written statement in time as he was abroad. The averments contained in paragraphs 1 to 3 of the affidavit filed by the 3^rd appellant in support of the application to condone delay (I.A.No.182 of 2013) are as follows:

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FAO.No.202/2017

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“1. I am the petitioner in I.A.No.182/2017 and I.A.No.193/2017 and I am conversant with the facts of the said Interlocutory Applications.

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I am swearing to this affidavit on behalf of petitioners 1 and 2 also in the above Interlocutory Applications. I.A.No.182/2017 is instituted seeking to set aside the ex-parte decree in the above suit and I.A.No.193/2017 is instituted seeking condonation of delay of 1128 days in filing the petition to set aside the ex-parte decree.

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The suit was instituted for realization of money. Exhibit-A1 is the Power of Attorney which was filed before this Hon'ble Court without due sanction as contemplated under Rule 22 of the Civil Rules of Practice, Kerala. On this ground alone the institution of the suit and the tendering of evidence is vitiated and the suit was/is liable to be dismissed. Before this Hon'ble Court the plaintiff claimed his relief based on Exhibit-A2 agreement dated 2.1.2009 and the ExhibitA3 agreement dated 9.8.2012. Both these documents were insufficiently stamped and therefore they ought not have been admitted in evidence.”

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3. Similar averments were made in the affidavit filed in

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support of I.A.No.193 of 2013, the application to condone the delay of 1128 days in filing the petition to set aside the ex parte decree. The respondent plaintiff filed objections resisting both the applications. He contended that the delay in filing the

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application to set aside the ex parte decree has not been properly explained. He also contended that the 3^rd appellant has not disclosed the point of time when he was abroad and the nature of the business being carried on by him abroad. He also contended that the appellants had entered appearance in E.P.No.38 of 2014, filed by him in Sub Court, Alapuzha, to execute the decree passed in O.S.No.360 of 2013 and that no such case as was put forward before the execution court. He contended that the applications are hence liable to be dismissed.

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Before the court below, the 3^rd defendant examined himself as PW1. In the affidavit filed by him in lieu of chief examination he came forward with a case, totally different from the one set out in the affidavits accompanying the applications to set aside the ex parte decree and to condone the delay in filing such an application. He contended that Sri.C.B.Sivadas, the counsel who was engaged to appear on their behalf had entrusted one of his colleagues, to represent him and that he came to know of the ex parte decree only when the plaintiff instituted E.P.No.38 of 2014. He proceeds to state in the said affidavit that thereafter he was advised by his counsel (without

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naming the counsel) that he should contest the Execution Petition wherein a warrant of arrest was issued against him, that he thereupon filed R.P.No.24 of 2017 in E.P.No.38 of 2014 before Sub Court, Alapuzha and also instituted O.P.No.570 of 2017 before this court. He has also avered that he was advised by his counsel (again the name of the counsel is not statedwhether it is Sivadas or somebody else is left to guess work and imagination) that Exts.A2 and A3 were executed in favour of his mother and therefore the plaintiff was incompetent to institute the suit. He proceeds to state that he was advised by his counsel that on this ground the decree is non est. In the next paragraph, however, the third appellant states that he was subsequently advised that there are conflicting judicial precedents to the effect that such a decree is non est and also to the effect that the decree is binding unless set aside by a court of competent jurisdiction and therefore to protect his interest and the interests of the other defendants he has filed the above application to set aside the ex parte decree and to condone the delay. He had produced along with his proof affidavit, a copy of his passport, to show that he was frequently traveling abroad. The trial court

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considered the rival contentions and the evidence tendered by the 3^rd appellant examined as PW1 held that appellants have not shown sufficient cause to have the ex parte decree set aside after condoning the delay in filing the application. The learned trial judge also held that though the 3^rd appellant had produced Ext.A1 passport, he is unable to explain the period during which he was abroad and was thereby disabled from filing a written statement or from contesting the suit. The applications were accordingly dismissed, by order passed on 07.12.2017.

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We have heard Smt.Mereena Joseph, learned counsel for the appellant and Sri.Manu Roy, learned counsel appearing for the respondent. We have also gone through the pleadings and the materials on record as also copies of the proceedings paper in the suit and in the applications. As stated earlier, the defendants have no case that they had not received summons in the suit. They have no case that they had instructed a counsel to appear in the suit. The proceedings paper in O.S.No.360 of 2013 would indicate that they had not entered appearance. The affidavit filed in support of the application to condone the delay and to set aside the ex parte decree do not contain such a

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statement, though such a case is attempted to be put forward in the proof affidavit filed by the 3^rd appellant, examined as PW1. As such a plea was not raised in the application to set aside the ex parte decree or to condone the delay in filing the application and nothing has been produced before us to show that a vakalath nama had in fact been filed, we are not persuaded to proceed on the basis that the appellants had entered appearance in the suit. As the appellants did not enter appearance or file a written statement, the learned trial judge proceeded to decree the suit ex parte. We would have interfered with the judgment decreeing the suit ex parte had the appellants moved an application to have the ex parte decree set aside at least in the year 2014 when they admittedly received summons in E.P.No.36 of 2014. Notwithstanding the fact that they had entered appearance in E.P.No.36 of 2014, they have not given any explanation as to why at least at that stage, they did not file an application to set aside the ex parte decree after condoning the delay.

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Even in the application to set aside the ex parte decree after condoning delay they had not blamed their counsel for failure to appear or for the delay in filing the application.

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Such a case was put forward only in the affidavit filed in lieu of chief examination sworn to by the 3^rd appellant 30.10.2017. It is also relevant in this context to note that the appellants had in the mean while filed O.P.(C).No.570 of 2017 in this court, wherein they challenged the warrant of arrest issued by the execution court. Even in O.P.(C).No.570 of 2017, the appellants had no case that the ex parte decree happened to be passed and the delay in filing the application to set aside the ex parte decree occurred on account of any latches or negligence on the part of their counsel. Such a case was put forward for the first time only in the affidavit filed in lieu of chief examination. In the absence of such a case for the appellant in the affidavit filed in support of the instant applications, the trial court was in our opinion perfectly justified in declining to set aside the ex parte decree. The appellants who admit having received summons in the suit, have not in our opinion given any acceptable explanation except stating that the 3^rd defendant was abroad at the relevant time, for their failure to file a written statement.

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Having regard to the communication facilities available in the year 2013, the physical presence of the 3^rd

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appellant in India was not at all required to give instructions to a counsel to appear on behalf of the defendants and to request for time to file a written statement. Going by the provisions contained in Order VII Rule 1 of the Code of Civil Procedure, the trial judge would have granted the appellants three months time to file a written statement from the date of first appearance. The proceedings paper would show that there was no appearance on behalf of the appellants even at the initial stage. Appellants 1 and 2 are companies incorporated under the Companies Act, the 3^rd appellant being the Managing Director. The absence of the 3^rd appellant from India cannot therefore be a reason for not appearing in the suit on the date fixed for appearance. The appellants ought to have in our opinion taken steps to enter appearance in the suit and prayed for time to file a written statement. They ought to have in any case, at least after receipt of notice in E.P.No.38 of 2014, filed an application to set aside the ex parte decree. Their failure to file an application in time is not at all explained, though belatedly, an attempt was made in the affidavit filed in lieu of chief examination to pass on the blame to their lawyer. We are not persuaded to accept that

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explanation, in view of the fact that no such case was pleaded in the application to set aside ex parte decree or even in O.P. (C).No.570 of 2017 which was presented in this court on 14.02.2017 and is even today pending. In our considered opinion, on the materials available, no conclusion other than the one arrived at by the learned trial judge was possible.

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We accordingly hold that there is no merit in the instant appeal. The appeal fails and is dismissed. No costs.

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Sd/- P.N.RAVINDRAN (JUDGE)

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Sd/-

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R.NARAYANA PISHARADI (JUDGE)

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True copy

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P.A to Judge

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M/S. D.K. Ayur Heritage Health v. P. Beno Chacko

Case brief

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M/S. D.K. Ayur Heritage Health v. P. Beno Chacko

Case brief

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