Integrated Housing Developers Ltd. v. Dr. Sen Varghese and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-12-01
Court Decision / Holding: Original petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Integrated Housing Developers Ltd.

Respondents

Dr. Sen Varghese S/o. Jacob K. Varghese, Thiruvananthapuram area (address listed in document)
Dr. Ritzy Varghese W/o. Sen Varghese, Thiruvananthapuram area (address listed in document)
N. Dhananjayan Unnithan S/o. Parameswaran, Thiruvananthapuram area (address listed in document)
Premchand S/o. Ramachandran Nair, Thiruanantapuram area (address listed in document)
Mohan Chand S/o. Ramachandran Nair, Thiruanantapuram area (address listed in document)
Rama B. Nair W/o. V.P. B. Nair, Thiruvananthapuram area (address listed in document)
Mahesh S/o. S. K. Manoharan, Ulloor, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• M. Sreekumar

Counsels for Respondents

• S. Chandrasekharan Nair
• Raju George (Karuvattta)
• Amala J. Raj
• Jerees J.
• S.S. Sailakshmi

Case Synopsis & Summary

Integrated Housing Developers Ltd., the petitioner, is the sixth defendant in O.S. No. 81 of 2009 on the file of the II Additional Sub Court, Thiruvananthapuram. The suit, filed by respondents for recovery of Rs. 45 lakh and interest for breach of a villa construction agreement, led to the petitioner being set ex parte on 15 December 2009. On 7 March 2019, the petitioner moved to set aside the ex parte order by I.A. No. 633/19; Ext. P3 is the order rejecting this application and Ext. P3 was confirmed by the trial court as barred by limitation under Article 137 of the Limitation Act due to more than a decade-long delay. The petitioner contends that the trial court erred in applying a technical ground and that the Apex Court has urged courts to decide on merits and not deny a party an opportunity on technicalities. The respondents counter that there was no bona fide explanation for the delay; they note the petitioner was aware of the suit and had engaged counsel; The trial court relied on C.L. Cleetus v. South Indian Bank and another (2007(3) KHC 911) and held that there is no specific Article for Order IX Rule 7; thus, period is governed by Article 137. The High Court agreed with the trial court and dismissed the original petition, finding the delay inordinate and not adequately explained.

Provisions of Law Cited

Article 137 of the Limitation ActOrder IX Rule 7, Civil Procedure Code (Code of Civil Procedure)

Legal Doctrines & Maxims

Principle of hearing matters on merits rather than dismissing on technicalities; courts should provide opportunities to contest on merits instead of rejecting on technicalities.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the court below committed illegality by rejecting the application for setting aside the ex-parte order on a technical ground, namely the absence of a separate condonation of delay. It is argued that the Apex Court has repeatedly emphasized that courts must provide opportunities to contest on merits rather than decide on technicalities, and that the petitioner has a strong case deserving a merits adjudication if given an opportunity.

Contentions of Respondents

The respondents submit that there is no bona fide explanation for the delay; the petitioner was aware of the suit and had engaged counsel; they rely on the absence of a specific Article for Order IX Rule 7 and on C.L. Cleetus v. South Indian Bank and another to hold that Article 137 of the Limitation Act governs such applications; the delay of over ten years is unexplained and cannot be condoned.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
C.L. Cleetus v. South Indian Bank and another	2007(3) KHC 911	Positive	Cited with approval to support the proposition that, in the absence of a specific Article for Order IX Rule 7 applications, the limitation period is governed by Article 137 of the Limitation Act.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 1803 OF 2020** **OS 81/2009 OF II ADDITIONAL SUB COURT,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/S:** INTEGRATED HOUSING DEVELOPERS LTD. REPRESENTED BY AUTHORISED REPRESENTATIVE, R. MARIMUTHU, HAVING ITS REGISTERED OFFICE AT FLAT E, GROUND FLOOR, ADITYA APARTMENTS, TRICHY ROAD, COIMBATORE - 45, (IN THE CAUSE TITLE OF EXT. P3 ORDER REPRESENTATIVE OF PETITIONER IS MISTAKENLY SHOWN AS REGIONAL MANAGER) BY ADV M.SREEKUMAR ## **RESPONDENT/S:** 1 DR. SEN VARGHESE S/O. JACOB K. VARGHESE, HOUSE NO.20, PUSHPA NAGAR, PLAMOODU, PATTOM P. O., THIRUVANANTHAPURAM - 695 004. 2 DR. RITZY VARGHESE W/O. SEN VARGHESE, HOUSE NO.20, PUSHPA NAGAR, PLAMOODU, PATTOM P. O., THIRUVANANTHAPURAM - 695 004. 3 N. DHANANJAYAN UNNITHAN S/O. PARAMESWARAN, 'DHANUSS', KODUNGANOOR P. O., VATTIYOORKAVU P. O., THIRUVANANTHAPURAM - 695 013. 4 PREMCHAND S/O. RAMACHANDRAN NAIR, 'SETHU', POOJAPPURA P. O., THIRUMALA, THIRUVANANTHAPURAM - 695 012. 5 MOHAN CHAND S/O. RAMACHANDRAN NAIR, 'SETHU', POOJAPPURA P. O., THIRUMALA, THIRUVANANTHAPURAM - 695 012. 6 RAMA B. NAIR W/O. V.P.B.NAIR, RESIDING AT 'SETHU', POOJAPPURA P. O., THIRUMALA, THIRUVANANTHAPURAM - 695 012. 7 MAHESH O.P.(C) No.1803 of 2020 -2- S/O. S. K. MANOHARAN, T.C.3/134, K.P.N. SADANAM, PARUTHIPARA, ULLOOR P. O., THIRUVANANTHAPURAM - 695 011. BY ADVS. R1 & R2 SRI.S.CHANDRASEKHARAN NAIR SRI.RAJU GEORGE (KARUVATTA) SMT.AMALA.J.RAJ SHRI.JEREES J. R7 SMT.S.S.SAILAKSHMI **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.1803 of 2020 -3- ## **JUDGMENT** Dated this the 01[st] day of December, 2021 Petitioner is the 6[th] defendant in O.S.No.81 of 2009 on the files of the IInd Additional Sub Court, Thiruvananthapuram. The suit was filed by respondents 1 and 2 seeking recovery of an amount of Rs.45 lakhs together with interest from the defendants and their assets. The dispute is with regard to the violation of an agreement for construction of a Villa in the project floated by the defendants. According to the first respondent, despite payment of the entire amount towards construction cost of the Villa, defendants flouted the terms of agreement and failed to deliver the Villa as promised. 2. Having failed to appear in the suit, petitioner was set exparte on 15.12.2009. Application for setting aside the ex-parte order ## O.P.(C) No.1803 of 2020 -4- was filed on 07.03.2019 and by Ext.P3 order, trial court dismissed the application finding that the application was filed beyond the period of limitation prescribed under Article 137 of the Limitation Act and that the explanation offered by the petitioner for the inordinate delay of more than 10 years is insufficient. Aggrieved, this original petition is filed. 3. Learned Counsel for the petitioner contended that the court below committed an illegality by rejecting the application for setting aside ex-parte order on the technical ground that the application was not accompanied with a petition for condonation of delay. It is argued that the Apex Court has time and again reiterated that courts should strive to provide opportunity to the parties to contest their case on merits, rather attempting to non-suit them on technicalities. According to the learned Counsel, the petitioner has got an excellent case and refusal to provide opportunity to contest the O.P.(C) No.1803 of 2020 -5- suit on merits is harsh and illegal. 4. According to the learned Counsel for the respondent, there is no absolutely no _bona fide_ in the explanation offered by the petitioner. It is contended that the petitioner was fully aware about the suit and the proceedings therein and had deliberately kept away from court, with intention to protract the matter. The petitioner had engaged Counsel much prior to the filing of the application and the Counsel had been keenly following the proceedings all through out. 5. Indisputably, petitioner was set ex parte on 15.12.2009 and filed application for setting aside the ex-parte order only on 07.03.2019. The trial court rightly relied on the decision in _**C.L.Cleetus v. South Indian Bank and**_ _**another [2007(3) KHC 911]**_ to hold that, in the absence of a specific Article in the Limitation Act providing the period of limitation for applications under Order IX Rule 7, limitation O.P.(C) No.1803 of 2020 -6- will be governed by the residuary Article 137, which prescribes a period of three years. Being so, the application for setting aside the exparte order filed after ten years, without a separate application for condoning the delay, cannot be entertained. Even otherwise, the explanation that petitioner came to know about the ex-parte order only after ten years, that too during cross-examination in another case, is impossible to believe. For the aforementioned reasons, the original petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1803 of 2020 -7- O.P.(C) No.1803 of 2020 -8- ## **APPENDIX OF OP(C) 1803/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF PLAINT IN OS NO.81/2009 FILED BY RESPONDENTS 1 AND 2 BEFORE THE IIND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM DATED 12.01.2009. EXHIBIT P2 TRUE COPY OF THE PETITION IN I.A.NO.633/19 IN OS 81/09 FILED BY PETITIONER DATED 07.03.2019. EXHIBIT P3 TRUE COPY OF ORDER IN I.A.NO.633/19 IN OS 81/09 DATED 25.11.2019 OF THE IIND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.