Allowed

Mohammed Anwar, v. Global Merchandise Pvt. Ltd.

Kerala HC10 Nov 2022FAO/9/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against an ex-parte decree. The appellants were granted a retrial, expropriating the cost incurred due to latches in court battles, and a time extension for the lower court to dispose of the case.

What did the court decide?

Set aside the ex-parte order; allow opportunity to contest; remand to the Sub Court for disposal within two months.

Mohammed Anwar, Vs Global Merchandise Pvt. Ltd. — Execution and Attachment | Kerala HC (2022)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 10^TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 FAO NO. 9 OF 2020

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AGAINST THE ORDER DATED 21/10/2019 IN I.A. NO.402/2018 IN OS 291/2012 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOLLAM

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APPELLANTS/PETITIONERS/DEFENDANTS:

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1 MOHAMMED ANWAR, AGED 45 YEARS, S/O. LATE AHAMMED KABEER RESIDING AT PANACKAL PRAMBIL AALATHOOR VILLAGE, PALAKKAD.

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2 PANACKAL CONSTRUCTIONS, PANACKAL PARAMBIL BROTHERS TOWER, 1ST FLOOR, MAIN ROAD, ALATHOOR, REPRESENTED BY ITS PROPRIETOR MOHAMMED ANWAR.

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BY ADV K.G.BINDU

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RESPONDENTS/COUNTER PETITIONER/PLAINTIFF:

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GLOBAL MERCHANDISE PVT. LTD. REPRESENTED BY ITS MANAGING DIRECTOR, SUBHASH SOMAN, ROHINI NIVAS, PULAMON.P.O. KOTTARAKKARA 691 506.

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BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO NO. 9 OF 2020

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..2..

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J U D G M E N T

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A. Muhamed Mustaque, J

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This appeal is filed by the defendant in O.S

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No.291 of 2012 on the file of the Principal Sub

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Court, Kollam. He was set ex-parte after filing the written statement. It appears that he had filed an application to appoint an advocate commissioner. The appointment of commissioner

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was sought to prove the case that he has undertaken construction in the property belongs to the plaintiff. The suit was filed by the plaintiff for recovery of the advance amount paid by him for undertaking construction by the defendant as a contractor.

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It appears that thereafter, the learned

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counsel for the defendant reported 'no

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instructions' and accordingly, ex-parte decree was passed.

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The explanation put forward by the

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..3..

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FAO NO. 9 OF 2020

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defendant for non appearance was that his father was laid up due to cancer and consequent upon his ailment, he died after prolonged treatment by one year. It is submitted that he may be given an opportunity to contest the case on merit. The application has been dismissed by the learned Sub Judge noting that there was no proper explanation for the delay incurred and noting latches in defending the case.

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We are of the view that an opportunity can be given to the appellant to contest the matter. It is true that there are latches. These latches can be remedied by payment of cost. We quantify the cost as Rs.25,000/- (Rupees Twenty Five Thousand only). The impugned order is set aside. If an application to appoint an Advocate Commissioner was preferred, it shall be reconsidered. The cost shall be paid within two weeks from today. The cost shall be paid through the learned counsel appearing before this Court.

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FAO NO. 9 OF 2020

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The parties shall appear before the Sub Court, Kollam on 1.12.2022. Thereafter, the Sub Court shall dispose of the case within a further period of two months thereon. If a fresh Advocate Commissioner has to be taken out, the appellant may be permitted to file an application for the same. If such an application is proposed to be filed, that shall be filed on the next posting day itself.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN JUDGE

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Mohammed Anwar, v. Global Merchandise Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Mohammed Anwar, v. Global Merchandise Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Statutes considered

Parties & counsel

Coram

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