Allowed

Prem Dhanapalan v. Mahima.S

Kerala HC3 Nov 2021FAO/118/2020

Case brief

AI extract

What is this about?

Allowed the appeal setting aside an ex pari decree in a specific performance suit due to sufficient cause involving health issues and marital discord, remanding the matter for trial with conditions for refunding deposits and payment of nominal costs.

What did the court decide?

The decree dated 25.10.2018 in O.S.No.92 of 2015 is set aside subject to conditions for payment of costs and refund of deposited amounts.

Prem Dhanapalan Vs Mahima.S — Specific Performance | Kerala HC (2021)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY,THE 3^RD DAY OF NOVEMBER 2021/12TH KARTHIKA,1943

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F.A.O.NO. 118 OF 2020

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AGAINST ORDER DATED 26.02.2020 IN I.A.NOS.943 OF 2019 AND 944 OF 2019 IN O.S.NO.92 OF 2015 OF THE PRINCIPAL SUB COURT, KOLLAM

APPELLANT:

PREM DHANAPALAN

AGED 47 YEARS,

S/O LATE DHANAPALAN PANICKER, RESIDING AT VRINDAVAN NAGAR-106, KADAPPAKKADA, KOLLAM-691 008.

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BY ADV HARISH GOPINATH

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RESPONDENT:

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MAHIMA.S

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AGED 39 YEARS W/O LAIJU, RESIDING AT BIJU NIVAS, JAYAN NAGAR-39, THEVALLY P.O. KOLLAM-691 301.

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BY ADVS. SRI.S.SUDHEESHKAR SRI.C.UNNIKRISHNAN (KOLLAM)

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR

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FINAL HEARING ON 03.11.2021, THE COURT ON THE SAME DAY

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DELIVERED THE FOLLOWING:

F.A.O.No.118 of 2020

JUDGMENT

Ajithkumar, J.

The defendant in O.S.No.92 of 2015 on the file of the Principal Sub Court, Kollam, is the appellant. He challenges the orders in I.A.Nos.943 and 944 of 2019 filed by him in the said suit.

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The suit was filed by the respondent for a decree of specific performance. The agreement for sale was executed between the appellant and the respondent on 14.11.2014, as per which, the plaint schedule property was agreed to be sold for a sale consideration of Rs.30 lakhs. The respondent contended that Rs.18 lakhs was paid on the said day and Rs.2 lakhs in two later instalments to the appellant, totaling Rs.20 lakhs towards advance sale consideration. Since the appellant defaulted to perform his part of the contract, the suit was laid.

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The appellant resisted the suit by filing a written statement. He contended that the agreement for sale was executed just as a security when he borrowed Rs.10 lakhs as loan. He stated that he borrowed from the respondent

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F.A.O.No.118 of 2020

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Rs.50,000/- each on two occasions as well.

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The suit was decreed in the absence of the appellant on 25.10.2018 allowing specific performance of the contract. The respondent filed an execution petition. It was in the meantime the appellant filed I.A.No.944 of 2019 under Order IX, Rule 13 of the Civil Procedure Code, 1908 for setting aside the exparte decree along with I.A.No.943 of 2019 under Section 5 of the Limitation Act seeking to condone the delay of 390 days. The learned Sub Judge dismissed both the applications.

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On appearance of the respondent both sides were heard on 26.2.2021 and execution of the decree was stayed by this Court as per order in I.A.No.1 of 2020. The stay order has been extended from time to time and is in force. The appellant produced two documents and the respondent produced four documents for reference in this appeal.

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Heard the learned counsel for the appellant and the learned counsel for the respondent.

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It is seen from the order of the learned Sub Judge

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F.A.O.No.118 of 2020

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in I.A.No.943 of 2019 that the appellant did not produce any document to support his contention that his mother was undergoing treatment for cancer. The learned Sub Judge did not believe the averments in the affidavit of the appellant and proceeded to dismiss the application. Consequently, I.A.No.944 of 2019 was also dismissed.

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The learned counsel appearing for the appellant submits that on account of the discord in the marital relationship of the appellant and the stress on account of the treatment of his mother, he was unable to concentrate on other personal matters. It is further pointed out that the appellant had got a good defence in the suit, but he could not contest because of his personal inconveniences. Now, relying on Annexures A1 and A2 documents, the appellant submits that there was sufficient cause for his failure to appear in court and to apply for setting aside the exparte decree on time.

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9. The learned counsel appearing for the respondent,

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on the other hand contended that even after getting notice on

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F.A.O.No.118 of 2020

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the execution petition, the appellant failed to take any action in the matter. It was only after the respondent depositing the balance sale consideration in terms of the decree, the appellant came forward with the interlocutory applications. He therefore contended that laches on the part of the appellant is writ large and the impugned orders do not suffer from any infirmity.

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Annexure A1 document would show that the mother of the appellant has been undergoing treatment for cancer since 2015. Annexure A2 would go to show that the appellant was also undergoing treatment from mid September, 2018.

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Having heard the learned counsel on both sides and considering Annexures A1 and A2 documents, we are of the view that there was sufficient cause for the nonappearance of the appellant in the suit when it was taken up for trial and also for the delay occurred in filing the applications under Order IX, Rule 13 of the Code. Therefore, the appeal is liable to be allowed.

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F.A.O.No.118 of 2020

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Annexures R1(a) to R1(d) would show that the respondent deposited Rs.5,04,354/- in Kilikolloor Branch of Kollam District Co-operative Bank for the discharge of debt due from the appellant, which he availed by mortgaging the plaint schedule property. It is also seen that the respondent deposited Rs.2,10,841/- in court towards balance sale consideration. When the respondent deposited those amounts as per the directions of the executing court, it is only just and proper for his getting back those amounts, once the decree is set aside.

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The delay and default on the part of the appellant were on account of the reasons beyond his control. Notwithstanding that, the inconveniences caused to the respondent as a result of setting aside the decree has to be compensated. We are of the view that Rs.10,000/- is the sufficient cost for setting aside the decree. Accordingly, this appeal is allowed and the decree dated 25.10.2018 in O.S.No.92 of 2015 is set aside subject to the following conditions:

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F.A.O.No.118 of 2020

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(1) The appellant shall pay Rs.10,000/- towards cost to the respondent, within three weeks; and

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(2) On payment to the respondent Rs.5,04,354/- within one month; both from the date of receipt of a copy of this judgment in the Principal Sub Court, Kollam.

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On satisfying the above conditions, the learned

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Principal Sub Judge, Kollam will take back O.S.No.92 of 2015 on file and proceed with the suit in accordance with law, and

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also permit the respondent to withdraw Rs.2,10,841/-, which he deposited as per the directions of the court. It is made clear that failure to satisfy any of the above conditions will result in automatic cancellation of the effect of this judgment.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

dkr

F.A.O.No.118 of 2020

APPENDIX

APPELLANT'S ANNEXURES

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ANNEXURE A1 CERTIFICATE DATED 18.09.2021 ISSUED BY A.A.RAHIM MEMMORIAL DISTRICT HOSPITAL, KOLLAM TO LALITHA DHANAPAL.

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ANNEXURE A2 CERTIFICATE DATED 18.09.2021 ISSUED BY DR.RADHAKRISHNAN M.P. TO THE PETITIONER.

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RESPONDENT'S ANNEXURES

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ANNEXURE R1(A) TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEPUTY GENERAL MANER OF THE ATTACHING CREDITOR BANK OF THE ATTACHING CREDITORBANK SHOWING THE REMITTANCE OF RS.5,04,354/- RUPEES FIVE LAKHS AND FOUR THOUSAND THREE HUNDRED AND FIFTY FOUR ONLY) AND CLOSURE OF THE LOAN ACCOUNT.

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ANNEXURE R1(C) TRUE COPY OF THE DECREE DATED 25.10.2018 IN O.S.NO.92 OF 2015 AWARDING COST OF RS.2,84,805/- (RUPEES TWO LAKHS EIGHT FOUR THOUSAND EIGHT HUNDRED AND FIVE ONLY)

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ANNEXURE R1(D) TRUE COPY OF THE RECEIPT FOR RS.2,10,841/- (RUPEES TWO LAKHS TEN THOUSAND EIGHT HUNDRED AND FORTY ONE ONLY) DATED 27.03.2019 DEPOSITED IN O.S.92 OF 2015 AS BALANCE SALE CONSIDERATION.

Prem Dhanapalan v. Mahima.S

Case brief

What is this about?

What did the court decide?

Prem Dhanapalan v. Mahima.S

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

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