## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**&**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941**
**FAO.No.38 OF 2020**
**AGAINST THE ORDER/JUDGMENT IN IA 3074/2018 AND 3075/2018 IN OS 204/2014 OF THE PRINCIPAL SUB COURT, PALAKKAD**
## **APPELLANTS:**
**1 M/S.REVATHY APARTMENTS PVT LTD NO.0909247/1995, HOUSE NO.1126/11, NELLIPPARA, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, REPRESENTED BY MANAGING DIRECTOR.**
**2 MANAGING DIRECTOR V. N. RADHAKRISHNAN, S/O. E. C. NARAYANAN, M/S REVATHY APARTMENTS PVT. LTD., NO.17/2624, SANTHIMADAM, SOUTH NALUVAZHI, PARAVUR VILLAGE, PARAVUR TALUK.**
**BY ADVS. SRI.V.A.PRADEEP KUMAR SHRI. ANOOP KRISHNA**
## **RESPONDENT:**
## **DILEEP KUMAR**
**S/O. KARUPPAN, VALIYAPARAMBIL HOUSE, KOOLIMUTTOM DESOM, KOOLIMUTTOM P. O., KODUNGALLUR TALUK, THRISSUR DISTRICT.**
**THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 4th day of March 2020 K.Harilal, J.**
- 1.The appellants herein are the defendants, who are confronting with an _ex-parte_ decree passed against them in OS 204/2014 of the Principal Sub Court, Palakkad. The 1[st] appellant is a private limited company and the 2[nd] appellant is its managing director. The said suit was one for realisation of advance amount paid by the respondent to the appellants as per an _ex-_
- agreement for sale. The suit was decreed _parte_ on 28.7.2015.
- 2.The 2[nd] appellant has filed an affidavit along with a petition to set aside the _ex-parte_
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decree passed against him and the 1[st] appellant company. According to the 2[nd] appellant, when he contacted his counsel to settle the matter, he came to know that the _ex-parte_ decree has been passed against them on 28.7.2015. Since he was laid up due to chest pain, hypertension and asthma, he could not contact his counsel or take necessary steps to file a written statement, on or before 28.7.2015. He was suffering from coronary artery disease and systemic hypertension, for the last several years. Since his health condition was unstable for the last ten years, he had been advised to take complete rest and avoid stressful life. While he was living in such a condition, after 1160 days from the date of the _ex-parte_ decree,
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when he contacted his counsel to settle the matter, he came to know that the _ex-parte_ decree has been passed against them in the suit on 28.7.2015. Immediately, he took necessary steps to file applications to set aside the _ex-parte_ decree, after condoning the delay of 1160 days in filing the application to set aside the _ex-parte_ decree. Hence, he filed IA Nos.3075/2018 and 3074/2018, respectively. According to him, it is only due to his illhealth that the delay of 1160 days occurred in _ex-_ filing the application, to set aside the _parte_ decree and there is no wilful negligence or laches on his part in causing the delay.
3.The respondent resisted the said interlocutory applications, contending that the 2[nd] appellant
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was fully aware of the _ex-parte_ decree passed against them from 28.7.2015 onwards, as they were represented by a counsel in the original suit. The appellants have not sufficiently or properly explained the reasons for the delay and they have not specifically mentioned the date on which and the circumstances under which they came to know the _ex-parte_ decree. They have filed EP 115/2016 against the appellants, for realising the decree amount in execution of the decree. In that EP, the appellants have entered filed vakalath and appearance, contested for one The aforesaid year. interlocutory applications have been filed by the appellants, after defending the said EP for one year. In the said EP, the property of the
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appellants was auctioned, the respondent bid the property in auction and sale was subsequently confirmed. The respondent has already deposited the balance amount before the
court, after deducting the decree amount. Thus, there is no _bona fides_ in the reason for the delay of 1160 days in filing the application to set aside the _ex-parte_ decree and the grounds stated are concocted grounds, disclosing a false story.
4.After considering the aforesaid rival pleas, the court below dismissed IA 3074/2018, on a finding that the appellants failed to establish sufficient cause for their non-appearance and _ex-_ for making application, to set aside the _parte_ decree, within the prescribed period.
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The legality and correctness of the aforesaid findings are challenged in this appeal.
- 5.Heard the learned counsel for the appellants and the learned counsel for the respondent.
- 6.The question to be considered in this appeal is, whether the sub court is justified in dismissing the application to condone the delay of 1160 days, on a finding that the appellants miserably failed to establish sufficient cause for their and for non-appearance making
- application to set aside the _ex-parte_ decree, within the prescribed period?
7. _Prima facie,_ we find that the appellants have not sufficiently or properly pleaded the reason for the delay of 1160 days in filing the application, to set aside the _ex-parte_ decree.
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It is that the 2[nd] was pleaded appellant suffering due to unstable health condition, caused by coronary artery disease and systemic hypertension, for the last 10 years. Surprisingly, no evidence, except the oral assertion of the 2[nd] appellant, has been adduced, to substantiate the said contention. Had he been undergoing such serious heart disease, certainly he could have produced medical evidence, to substantiate the said contention. Since the delay is inordinate, absence of medical evidence, to prove his physical disability, to contact his counsel for 1160 days, is fatal.
- 8.More importantly, the respondent has filed EP
115/2016 for realisation of the amount in
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execution of the decree and in that EP, the appellants have entered appearance, filed vakalath and vigorously contested the EP for one year. The interlocutory applications were filed thereafter. In the said EP, the property of the appellants had been auctioned, the respondent bid the property in auction and sale was subsequently confirmed. The respondent has already deposited the balance amount before the court, after deducting the decree amount due to him. Thus, the 2[nd] appellant's appearance in EP and his active involvement in conducting the execution petition for one year would prove that the reason for the delay of 1160 days in _ex-_ filing the application to set aside the _parte_ decree lacks _bona fides_ and the same is a
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concocted story. Thus, the court below is justified in dismissing the application to condone the delay of 1160 days in filing the application to set aside the _ex-parte_ decree.
9.It is true that in the matter of condoning delay, liberal view is the general view, with certain exceptions only. In _**Esha**_
_**Bhattacharjee v. Managing committee of Raghunathpur Nafar Academy and others**_ **[(2013) 12 SCC 649]** , the Supreme Court has laid down a
guideline in the matter of condoning delay , specifically describing the circumstances and
the grounds, under which delay cannot be
condoned liberally. The Supreme Court has
specified the exceptional grounds, under which delay cannot be condoned liberally thus:
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“ _21.10.(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation._
_21.11.(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation._
_21.12(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.”_
10. When applying the guidelines in _**Esha**_
_**Bhattacharjee**_ 's case ( _supra)_ to the instant case, we find that the reason for the delay of
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1160 days, in filing the application to set aside the _ex-parte_ decree, stated by the appellants is a concocted story, made without _bona fides._ Hence, the court below is justified
in dismissing both the interlocutory applications.
11. The appeal fails and the same is dismissed accordingly.
**Sd/K.Harilal, Judge Sd/C.S.Dias, Judge**
sl.
