Dismissed

Kodanchery Surendran v. Housing and Urban Development Corporation Ltd.

Kerala HC27 Feb 2018FAO/213/2017

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against an order upholding the rejection of an application to set aside an ex-parte decree. The court held that the appellant offered no valid explanation for his non-appearance decades ago and that his later illness did not justify condoning a 3273-day delay in applying to set aside the decree.

What the court decided

AI extract

Kodanchery Surendran Vs Housing and Urban… — 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 & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939

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FAO.No. 213 of 2017

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ORDER DATED 31.10.2017 IN IA NOS.28/2017 AND 29/2017 IN OS NO.269/2006 OF THE PRINCIPAL SUB COURT, THALASSERY

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APPELLANT(S)/PETITIONER/DEFENDANT

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KODANCHERY SURENDRAN S/O.GOPALAN, AGED 56 YEARS, RESIDING AT WHITE HOUSE, KARETTA NEERVELI, KARETTA AMSOM, DESOM, IRITTY TALUK, KANNUR DISTRICT.

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BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SMT.BOBBY U. NAIR SRI.BABU SHANKAR

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RESPONDENT(S):RESPONDENT/PLAINTIFF

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HOUSING AND URBAN DEVELOPMENT CORPORATION LTD HAVING ITES REGISTERED OFFICE AT HUDO BHAVAN, INDIRIA HABITAT CENTRE, LODHI ROAD, NEW DELHI, HAVING ITS RETAIL FINANCE UNIT AT HUDCO NIVAS, 1ST FLOOR, ZAMORIN'S SQUARE, JAIPRAKASH NARAYANAN ROAD, KOZHIKODE, NOW SHIFTED TO NIWAS NARAYANAN ROAD, KOZHIKODE, NOW SHIFTED TO JUDCO NOWAS,SAPHALYAM, PALAYAM, THIRUVANANTHAPURAM-695 034.

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R1 BY ADV. PAULACHAN ANTONY

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran &

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R.Narayana Pisharadi, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - -

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F.A.O.No.213 of 2017

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27^th February, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellant is the defendant in O.S.No.269 of 2016 on the file of the Court of the Principal Subordinate Judge of Thalassery. The sole respondent is the plaintiff therein. Though the appellant had received summons in the suit and he had entered appearance through counsel, he did not file a written statement resisting the suit. He did not also appear when the suit was listed for trial. He was therefore set ex-parte and an ex-parte decree was passed on 17.1.2008.

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Several years later, he filed I.A.No.29 of 2017 in O.S.No.269 of 2006 under Order IX Rule 13 of the Code of Civil Procedure with a prayer that the ex-part decree passed on 17.1.2008 may be set aside. He had also filed I.A.No.28 of 2017 to condone the delay of 3273 days in filing the former application. In the affidavits filed in support of the said applications he had averred that he did not file an application to set aside the ex-parte decree for the reason that the decree holder had made him believe that the matter could be amicably settled on payment of the principal amount and believing the said words he had effected payment in execution proceedings and altogether remitted a

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FAO 213/2017 2

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sum of Rs.13,64,000/-. He had also further averred that in the meanwhile he was hospitalised on 25.6.2014 at Indiana Hospital and Heart Institute Limited, Mangalore for treatment, that when he was discharged from the hospital, he was totally paralysed and was not in a position to move about. He had also averred that the delay in filing the application to set aside the ex-parte decree occurred in the aforesaid circumstances.

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The plaintiff filed a counter affidavit resisting both the applications. It denied the averment that it had made the defendant believe that the matter could be amicably settled on payment of the principal amount. It also contended that the defendant had approached this court challenging the orders passed in E.P.No.245 of 2009 on several occasions from 2011 onwards and that even according to the defendant his hospitalisation and treatment was only on 25.6.2014. The plaintiff contended that the applications have been filed to delay and defeat the realisation of the amounts due under the decree.

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Before the trial court the defendant examined himself as PW1 (he was examined on commission) and produced and marked Exts.A1 to A3. Ext.A1 would show that the appellant was admitted as an inpatient in Kannur Medical College Superspeciality Hospital on 23.6.2014. Ext.A2 would show that he was admitted in Indiana

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FAO 213/2017 3

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Hospital, Mangalore on 25.6.2014 and was advised rest for six months. Ext.A3 issued from Parassinkadau Ayurveda Medical College Hospital would show that he was advised bed rest for a period of four months from 12.12.2015 for complete restoration of his health. After considering the evidence oral and documentary on record, the learned trial Judge came to the conclusion that the defendant has not given any reason for his non appearance on 17.1.2008 and unless sufficient cause is shown for such non appearance, the application to set aside the ex-parte decree cannot be allowed. The learned trial Judge also held that the appellant has no case that summons was not duly served on him or that he was prevented by sufficient cause from appearing on 17.1.2008 and therefore it cannot be said that he has made out any ground to set aside the ex-parte decree. The learned trial Judge also held that the delay in filing the application to set aside the ex-parte decree has also not been properly explained. The learned trial Judge according dismissed both the applications by order passed on 31.10.2017, which is under challenge in this appeal.

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We heard Smt.N.Sudha, learned counsel for the appellant. Learned counsel for the appellant submitted that the appellant is paralysed and bedridden and therefore taking a lenient view the delay in filing the application to set aside the ex-parte decree may be condoned and the impugned order may be set aside. Learned counsel

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FAO 213/2017

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also submitted that the appellant has till date paid more than Rs.13,64,000/- towards the decree debt in instalments and having regard to the fact that the principal amount borrowed was only Rs.3,74,000/-, he may be afforded an opportunity to contest the suit on the merits.

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As observed by the learned trial Judge, the appellant has not given any explanation for his non appearance on 17.1.2008, the date on which he was set ex-parte and an ex-parte decree was passed. He had not even filed a written statement in the suit. He has no case that he had not received summons in the suit. In fact, examined as PW1, he had deposed that he had engaged a lawyer to appear for him in the trial court. For reasons best known to him, he did not choose to file a written statement. He has no case that he and his counsel were unaware of the posting of the case on 17.1.2008. In short, there is no explanation as to why the appellant did not file a written statement in time or an application to set aside the ex-parte decree in time. The application was filed only with a delay of 3273 days. Even on his own evidence, he was hospitalised for treatment only in the year 2014. There is no explanation as to why, before 23.6.2014 when he was first hospitalised for treatment at Kannur Medical College Superspeciality Hospital, he did not take steps to file an application to set aside the exparte decree. Even assuming that he was bedridden from 23.6.2014

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FAO 213/2017

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on wards, this court cannot even taking a liberal view, hold that he has shown sufficient cause for not filing an application to set aside the exparte decree in time.

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If the appellant's contentions were to be accepted, it would amount to the Limitation Act being totally ignored. The plea which the appellant has raised is a plea which can be raised by any defendant who has suffered an ex-parte decree by contending that several years after the ex-parte decree was passed, he or she was afflicted with some disease or ailment and was bedridden thereafter. The question that arises before us and that which arose before the learned trial Judge is whether the appellant has shown sufficient cause for his non appearance on 17.1.2008 and has also offered sufficient explanation for not filing an application to set aside the ex-parte decree within thirty days therefrom. As stated earlier, the appellant has no case that he was unaware of the posting of the suit on 17.1.2008. He has no case that he was unaware of the ex-parte decree passed on 17.1.2008. He has no explanation as to why he did not take steps to file an application to set aside the ex-parte decree within thirty days from 17.1.2008 or at least shortly thereafter. In fact, there is no explanation as to why he did not before 23.6.2014, the date on which he was first hospitalised, take steps to file an application to set aside the ex-parte decree.

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FAO 213/2017

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On the materials available, no exception can in our opinion be taken to the impugned order. By no stretch of imagination can it be said that the learned trial Judge has committed an error of law when he held that the appellant has not shown sufficient cause either to condone the delay in filing the application to set aside the ex-parte decree or for his non appearance on 17.1.2008.

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We accordingly hold that there is no merit in the instant appeal.

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The appeal fails and is dismissed in-limine.

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(P.N. Ravindran, Judge)

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(R.Narayana Pisharadi, Judge)

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kav/

Kodanchery Surendran v. Housing and Urban Development Corporation Ltd.

Case brief

What is this about?

What the court decided

Kodanchery Surendran v. Housing and Urban Development Corporation Ltd.

Case brief

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What the court decided

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