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2005 DIGILAW 506 (KER)

Deepu Zachariah v. Xavier

2005-08-01

J.M.JAMES

body2005
Judgment :- J.M. James, J. The writ petitioners are the defendants in O.S.No.229/1997 of Principal Sub Court, Kottayam. The respondent/Plaintiff filed the suit, for specific performance of a contract for sale of a property, to an amount of Rs.30 lakhs. Of the sale amount, a payment of Rs.24 lakhs, was allegedly paid as the part of the sale consideration. On the failure of the writ petitioners, to execute the sale deed, the respondent had approached the court and filed the suit in the year 1997. During the pendency of the suit, and after the filing of the written statement, the suit was amended, with an alternative prayer, for the return of the money, in the even of the specific performance not allowable. The suit could not be disposed of till 16.9.2004. On that date, when the matter was taken up, the respondent’s counsel, before the court below, submitted no instructions. Accordingly, the suit was adjourned to 29.9.2004. there was no representation on that date. Hence, the court below passed an ex parte decree against the writ petitioners for realizing Rs.24 lakhs with interest and cost of Rs.1,86,765/=. 2. The writ petitioners filed I.A.No.2964/2004 on 28.10.2004, within 30 days, under Order IX Rule 13 C.P.C, to set aside the ex parte decree passed against them. Considering the strong objection filed by the respondent/plaintiff, the court below, though commended upon Ext.A1 medical certificate produced by the him, yet set aside the ex parte order and the decree there on, with a condition that, if an amount of Rs.1,86,765/- was deposited within two weeks, the ex parte decree will stand set aside. The said order is under challenge through this writ petition. 3. I heard the arguments of learned counsel Sri. Liji J. Vadakkedom and Sri. Rajeev V. Kurup. The lower court considered V.K. Industries v. M.P. Electricity Board, Rampur, Jabalpur (AIR 2002 SC 1151) in imposing the cost of Rs.1,86,765/-. The very same authority had been relied on before me too, to emphasis the fact that the cost imposed should be reasonable and not to be harshly excessive. The counsel went on to submit that the property of the writ petitioners had already been attached. Thus the decree, that would be passed, is already well secured. The very same authority had been relied on before me too, to emphasis the fact that the cost imposed should be reasonable and not to be harshly excessive. The counsel went on to submit that the property of the writ petitioners had already been attached. Thus the decree, that would be passed, is already well secured. Because of the impecunious conditions of the writ petitioners, the excessive cost imposed may be avoided, and the writ petitioners may be allowed to contest the suit, so that the same could be decided on merits. 4. The learned counsel, Sri. Rajeev V. Kurup, had brought to my notice that, though ‘no instruction’ was submitted on 16.9.2004, there was no explanation available, even in the interlocutory application filed to set aside the ex parte decree, for the inaction up to 29.9.2004, when the ex parte order was passed. Ext.A1 medical certificate only reveals that the 1st petitioner was suffering from low back ache. There was nothing to show that he was immobilized. There was also nothing to show that he was prevented from passing instructions to the counsel. It is further submitted that though an amount of Rs.24 lakhs had been paid, an amount of Rs.17 lakhs alone had been admitted in the written statement by the writ petitioners. This large sum remain as dead money and therefore, prayed that a substantial amount may be directed to be deposited, which could be released and made use of by the respondent/plaintiff. Hence, prayed to sustain the order passed by the court below. 5. In V.K. Industries case, cited supra, the facts show that the plaintiff filed the suit for realization of an amount of Rs.3,34,455.44 Ps with future interest of 24% per annum. Summons was not personally served to the defendants. A paper publication was effected. Accepting the same as sufficient service, the trial court decreed the suit ex parte, as prayed for by the plaintiff. The defendants, on knowing about the passing of the ex parte decree, filed a petition before the trial court, to set aside the ex parte decree. The same was dismissed. It was challenged through a miscellaneous appeal before the Hon’bel High Court of Madhya Pradesh. The defendants, on knowing about the passing of the ex parte decree, filed a petition before the trial court, to set aside the ex parte decree. The same was dismissed. It was challenged through a miscellaneous appeal before the Hon’bel High Court of Madhya Pradesh. The appeal was disposed of setting aside the ex parte decree subject to the condition that; to pay Rs.2 lakhs within a period of tow months; to furnish Bank guarantee for the remaining plaint amount within two months, and to release the amount of Rs.2 lakhs deposited in accordance with the final order that may be passed in the suit. The plaintiff did not challenge the setting aside of the ex parte decree. However, the defendants approached the Apex Court challenging the terms and conditions in the judgment of the High Court. 6. Discussing the facts and considering the circumstances of the case, the Apex Court, at paragraph 5 observed as follows: “5. Ordinarily, a money decree is not stayed unconditionally and the judgment debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex prate decree was passed against the appellants, once it is set aside on the ground on non service of suit summons the money decree did not exist for execution. It is no doubt true that in restoring a case the Court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits.” 7. Ultimately, the Apex Court directed to reduce Rs.2 lakhs, which was directed to be deposited by the High Court, to Rs.One lakh. As Rs.50,000/- was already remitted by the defendants before the trial court, balance Rs.50,000/- was directed to be paid with in two weeks from the date of judgment of the Supreme Court the direction of the High Court, to deposit Rs.2 lakhs as well as furnish Bank guarantee was, accordingly, modified. As Rs.50,000/- was already remitted by the defendants before the trial court, balance Rs.50,000/- was directed to be paid with in two weeks from the date of judgment of the Supreme Court the direction of the High Court, to deposit Rs.2 lakhs as well as furnish Bank guarantee was, accordingly, modified. 8. The learned counsel for the writ petitioners submits that the petitioners are unable to raise the amount of Rs.1,86,765/- or even any less amount, because of their present financial difficulties. 9. It is brought out that the property of the writ petitioners had already been attached, and thus, the decree that may be passed is well secured, because of the attachment of the property. The imposition of the condition must be reasonable in relation to the facts of the case and must enable the defendants to pay the cost. Imposing of such conditions, which they are unable to comply with because of the situations in which the defendants are placed into, would only make a case being practically thrown out, without having it considered on merit, after hearing both sides, after hearing both sides, after adducing evidence. The trial court set aside the ex parte decree. However, the imposition of the condition of cost, as stated above, is unbearable to the defendants in the factual situation of this case. 10. As submitted before me, the decree amount that may be passed against the writ petitioner is well secured, because of the charge over the property. Hence, I am of the view that no further conditions need be imposed. Though there was no action from the writ petitioners from 16.9.2004 to 29.9.2004, but considering the ailment mentioned in Ext.A1 medical certificate produced before the trial court, and also avoiding harshness and taking a reasonable view, I am of the opinion that the cost of Rs.1,86,765/- directed to be deposited be waived. The order of the court below is hereby modified by directing the writ petitioners to pay an amount of Rs.5,000/- as cost. The same shall be paid within seven days from today, either to the counsel appearing for the respondent/plaintiff, or directly to the plaintiff. Because of the charge, that has already been created on the property, which is the subject matter of the suit, the other condition imposed is also vacated. 11. The same shall be paid within seven days from today, either to the counsel appearing for the respondent/plaintiff, or directly to the plaintiff. Because of the charge, that has already been created on the property, which is the subject matter of the suit, the other condition imposed is also vacated. 11. The suit being of the year 1997, I direct the trial court to dispose of the same within two months from the date of production of a copy of this judgment. The writ petition is disposed of as above.