PROWESS CONSTRUCTIONS (P) LTD. v. SATHIBHOOSHAN, S/O. SUKUMARAN
2017-02-20
P.N.RAVINDRAN, P.SOMARAJAN
body2017
DigiLaw.ai
JUDGMENT : P.N. Ravindran, J. The appellants are the defendants in O.S.No.309 of 2010 on the file of the Court of the Additional Subordinate Judge of Thrissur. The sole respondent is the plaintiff therein. The respondent/plaintiff has in O.S.No.309 of 2010 prayed for a decree directing the defendants to execute and register a sale deed in respect of the plaint schedule property. The plaint schedule property is an apartment having a total plinth area of 895.23 Sq.Ft. situate in Guruvayur town. The case set out in the plaint is that out of the agreed sale consideration of 30 lakhs, the sum of 12 lakhs was paid on the date of the agreement, namely 11.7.2009 and that the agreement between the parties was to execute and register the conveyance by 31.12.2009. The respondent/plaintiff had alleged that though the plaintiff was ready with the balance consideration, the defendants declined to execute the sale deed on some ground or the other. 2. Upon receipt of summons, defendants entered appearance and filed a written statement resisting the suit. They denied the execution of the sale agreement and receipt of advance consideration. The defendants, however, admitted the fact that the second defendant had availed a loan of 7 lakhs from the plaintiff on several occasions and that out of the said amount, the sum of 2.5 lakhs was repaid and that at the time the loan was availed blank cheques and stamp papers bearing the signatures of defendants 2 and 3 were handed over to the plaintiff. They contended that the sale agreement produced along with the plaint was fabricated misusing the blank signed stamp papers bearing the signatures of defendants 2 and 3. The defendants were initially set exparte on 27.10.2010. Thereafter the plaintiff paid the balance court fee payable on the plaint on 6.1.2011. Shortly thereafter the defendants filed an application to set aside the order setting them exparte. That application was allowed and the suit was listed to 3.11.2011. Since the defendants did not even thereafter appear and contest the suit, an exparte decree followed on 24.11.2011. 3. Several years later, they filed I.A.No.4539 of 2016 to set aside the exparte decree passed by the court below on 24.11.2011, accompanied by I.A.No.4538 of 2016 to condone the delay of 1769 days in filing the former application.
Since the defendants did not even thereafter appear and contest the suit, an exparte decree followed on 24.11.2011. 3. Several years later, they filed I.A.No.4539 of 2016 to set aside the exparte decree passed by the court below on 24.11.2011, accompanied by I.A.No.4538 of 2016 to condone the delay of 1769 days in filing the former application. In the affidavits filed by the third defendant in support of the said applications he had averred that they were conducting the case very seriously,, that they had entrusted the case with their earlier counsel and they were under the bonafide impression that the counsel will look after the case property protecting their interest and that they had the habit of contacting their counsel and regularly attending his office whenever asked by him. The affidavit proceeds to state that "once it is told that the case would be transferred to Chavakkad Court and that will be intimated by way of notice from that Court, believing the same we waited for intimation." It is stated that as the first defendant company stopped functioning, the deponent and his wife are residing at Tamil Nadu; that unfortunately their earlier counsel omitted to intimate the fact of setting them exparte and that it was only when the notice on I.A.No.3835 of 2016 was received by him that he realized that the suit has been decreed in his absence. The deponent has also averred that upon receipt of the said notice he personally enquired about the case and then came to know that counsel had left the job and gone abroad for employment. It is stated that the defendants were unaware of the posting dates of the case and that they were under the bonafide impression that their counsel will look after the case properly even in their absence as assured by him and that for want of representation on their side the suit was decreed exparte. He has also averred that the appellants were totally unaware of the decree till they received notice in I.A.No.3835 of 2016. 4. The plaintiff opposed the said applications by filing separate counter statements. She denied the averment of the third defendant that the defendants' counsel had left his profession and gone abroad. It was contended that Sri.
He has also averred that the appellants were totally unaware of the decree till they received notice in I.A.No.3835 of 2016. 4. The plaintiff opposed the said applications by filing separate counter statements. She denied the averment of the third defendant that the defendants' counsel had left his profession and gone abroad. It was contended that Sri. T.S. Ajith Kumar, counsel appearing for the defendants, who is a member of the Bar Council is still practicing, though the defendants were set exparte on 27.10.2010 that order was set aside and the suit was listed for trial on 3.11.2011 and the suit was decreed exparte since they remained absent. 5. The court below considered the rival contentions and dismissed both the applications by the impugned order which was passed on 19.1.2017. The court below has dismissed the applications taking note of the fact that after the exparte decree was passed on 24.11.2011 the appellants had on 5.1.2012 filed I.A.Nos.275 of 2012 and 276 of 2012 to set aside the exparte decree after condoning the delay of 14 days in filing such application. In the affidavits filed in support of the said applications it was averred that the appellants were not able to contact their lawyer as second defendant was laid up due to jaundice. The court below has in the impugned order referred to the fact that the said applications were dismissed for want of representation on 12.3.2012. The court below has also referred to the fact that the appellants thereafter filed I.A.Nos.2092 of 2013 and 2093 of 2013 on 16.2.2013 to set aside the exparte decree after condoning the delay of 419 days in filing the application to set aside the exparte decree. In the affidavit filed in support of the said applications it was averred that they were held up at Coimbatore for the last two years and therefore they could not enquire about the case with the lawyer. The court below has also referred to the fact that the said applications were also dismissed on 27.6.2013 for want of representation and for non-payment of process fee and that it is suppressing the aforesaid facts that the instant applications have been filed.
The court below has also referred to the fact that the said applications were also dismissed on 27.6.2013 for want of representation and for non-payment of process fee and that it is suppressing the aforesaid facts that the instant applications have been filed. The court below has also taken note of the fact that the case set out in I.A.No.4538 of 2016 that they came to know about the exparte decree only when they received notice in I.A.No.3835 of 2016 is a false plea. 6. After hearing learned counsel appearing for the appellants and after going through the impugned order and the materials made available to us for consideration, we find no reason or justification to take a different view. The appellants have no case that they had not filed I.A.Nos.275 of 2012 and 276 of 2012 on 5.1.2012 to set aside the very same exparte decree after condoning the delay of 14 days in filing the application to set aside the exparte decree. They do not also deny having filed I.A.Nos.2093 of 2013 and 2094 of 2013 for the very same relief after condoning the delay of 419 days in filing the application to set aside the exparte decree. The case set out in the applications now filed is that they came to know of the exparte decree only in 2016 when they received notice on I.A.No.3835 of 2016. As stated by the court below, in the light of the averments in the affidavits filed in support of I.A.Nos.275 of 2012 and 276 of 2012, I.A.Nos.2092 of 2013 and 2093 of 2013, the said plea cannot be countenanced and has to be rejected. If the averment in the affidavit filed by the appellants in support of I.A.Nos.275 of 2012 and 276 of 2012 is to be believed, they came to know about the exparte decree prior to 5.1.2012. The case now pleaded is that they came to know of the exparte decree only in 2016 upon receipt of notice on I.A.No.3835 of 2016. On the materials on record, we are of the considered opinion that the appellants have not made out a case warranting interference with the impugned order.
The case now pleaded is that they came to know of the exparte decree only in 2016 upon receipt of notice on I.A.No.3835 of 2016. On the materials on record, we are of the considered opinion that the appellants have not made out a case warranting interference with the impugned order. The court below was, in our opinion, perfectly justified in coming to the conclusion that the appellants have not made out sufficient cause to condone the delay of 1769 days in filing the application to set aside the exparte decree passed in the suit. The applications were, in our opinion, rightly dismissed by the court below. The appellants who had earlier filed an application to set aside the exparte decree on 5.1.2012 cannot contend that they came to know about the exparte decree only in 2016 when they received notice on I.A.No.3835 of 2016. The applications are, in our opinion, an abuse of the process of the court and were rightly dismissed by the court below. Though learned counsel appearing for the appellants contended that the dismissal of this appeal will stand in the way of the appellants from defending I.A.No.3835 of 2016, we find no reason or justification to accept that contention. I.A.No.3835 of 2016 is an application filed by the plaintiff under Section 28 of the Specific Relief Act, 1963 for enlargement of the time to deposit the balance sale consideration. It is for the court below to exercise the discretion conferred on it under Section 28 of the Specific Relief Act and decide whether the plaintiff should be granted further time to pay the balance sale consideration. The mere fact that the decree passed by the court below is an exparte decree will not, in our opinion, deprive the defendants from contesting the case. We therefore find no reason to entertain the appeal on that score. We accordingly hold that there is no merit in the instant appeal. The appeal fails and it is dismissed.