Simi Salim and Salim Hameed v. M/S Tip Top Furniture Industries and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT: THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933 FAO.No. 4 of 2012 () -------------------- ORDER DATED 4-08-2011 IN I.A. NO. 1362 OF 2010 IN OS.22/2008 of PRINCIPAL SUB COURT,ATTINGAL APPELLANT(S)/APPELLANTS/DEFENDANTS: ---------------------------------- ## 1. SIMI SALIM W/O. SALIM HAMEED, FAIZAL MANZIL, VETTUROAD KANIYAPURAM P.O., PALLIPURAM VILLAGE THIRUVANANTHAPURAM DISTRICT. 2. SALIM HAMEED S/O. SHAHUL HAMEED, FAIZAL MANZIL, VETTUROAD KANIYAPURAM P.O., PALLIPURAM VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S)/PLAINTIFFS: ------------------------- 1. M/S.TIP TOP FURNITURE INDUSTRIES SANTHI NAGAR, PARAPPUR, KOTTAKKAL MALAPPURAM DISTRICT REPRESENTED BY MANAGING PARTNER, K.T.SAITHALAVI S/O. K.T.KUNJUKOYA, KUNATHODI HOUSE, ATTERI PUTHOOR P.O., MALAPPURAM DISTRICT. -2- 2. K.T.SAITHALAV - S/O. K.T.KUNJUKOYA, KUNATHADI HOUSE, ATTERI - PUTHOOR P.O., MALAPPURAM DISTRICT. ## 3. A.THITHUMMA - W/O. K.T.SAITHALAVI, KUNATHADI HOUSE, ATTERI - PUTHOOR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.S.SREEKUMAR (SR.)FOR R1 BY ADVS. SRI.P.MARTIN JOSE, SRI.P.PRIJITH AND SRI.ANEESH JAMES THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR HEARING ON 28-02-2012 THE COURT ON 02-03-2012, DELIVERED THE FOLLOWING: ## V. RAMKUMAR, & K. HARILAL, JJ. ........................................................ F.A.O. No. 4 of 2012 ......................................................... ## Dated: 02-03-2012 ## JUDGMENT In this appeal filed under Order XLIII Rule 1(d) C.P.C. the appellants who are defendants 1 and 2 in O.S. No. 22 of 2008 on the file of the Sub Court, Attingal , challenge the orders dated 4- 8-2011 passed by the learned Subordinate Judge dismissing I.A. Nos. 1361 and 1362 of 2010 . I.A. 1362 of 2010 was a petition filed under Order IX Rule 13 C.P.C. for setting aside a decree passed ex-parte as against the appellants on 15-10-2010. I.A. 1361 of 2010 was to condone the delay of 160 days in filing I.A. 1362 of 2010. 2. The aforesaid suit filed by the first respondent herein , as amended, is one for specific performance of Ext.A1 agreement dated 29-12-2005 executed by defendants 1 and 2 agreeing to let out the plaint schedule three storied building to the plaintiff F.A.O. No. 4 of 2012 -:2:- for starting a furniture showroom at Kaniyapuram in Attingal Taluk, and in the alternative for realisation of a sum of Rs. 36,48,545 with interest. The appellants who entered appearance and filed written statement subsequently remained ex-parte and the suit was thereafter decreed ex parte on 15-1-2010. 3. We heard Adv. Sri. M.R. Rajesh, the learned counsel appearing for the appellants and Senior Advocate Sri. S. Sreekumar, the learned counsel appearing for the contesting first respondent/plaintiff. ## APPELLANTS' ARGUMENTS 4. Adv. Sri. M.R. Rajesh made the following submissions before us in support of the appeal:- The first defendant is the wife of the 2[nd] defendant and she is a house wife. The 2[nd] defendant was busy with his business activities. Defendants 1 and 2 were defended by the first defendant's younger brother who is a lawyer practicing at Attingal. Being a close relative, the Advocate had assured the appellants that all necessary steps will be taken and the matter will be intimated promptly . It was only when the appellants received the notice of execution that they rushed to the Advocate's office only to find that he was absent both in -:3:- F.A.O. No. 4 of 2012 his office and residence. On further enquiries, the appellants came to know that the Advocate was not regular in his professional work on account of his personal and health problems. His wife also had reportedly left his company. It was under these circumstances that the appellants filed the above petitions for setting aside the ex parte decree and for condoning the delay. The decisions reported in **John v. Mammukutty - 1984 KLJ 772; Collector , Land Acquisition, Anantnag v. Katiji - AIR 1987 SC 1353; Pokku v. Ammini - 1987 (2) KLT 308; Balwant Singh v. Jagdish Singh and Others - (2010) 8 SCC 685 and Parimal v. Veena - (2011) 3 SCC 545** all take a liberal view in the matter of condonation of delay. Similarly, the decisions reported in **Plantation Corporation of Kerala Ltd. v. Hussain** - **1998 (1) KLT 1008 ; Deepu Zachariah v. Xavier - 2005 (3) KLT (S) 80; Kerala Packaging Pvt.Ltd. v. M/s. Ramalinga Iyer - 2000 (3) KLT (SN) 65; Karuppan @ Cherunni v. Sankaran Nair - 1972 KLT 643; State of Orissa v. Sibraram Baral - 1996 (2) KLT (SN) 40** etc. have deprecated the practice of imposing onerous conditions on the applicant/defendant in a petition under Order IX Rule 13 C.P.C. The court below was, therefore, taking a hyper-technical view in dismissing the applications. -:4:- F.A.O. No. 4 of 2012 ## JUDICIAL EVALUATION 5. We are afraid that we find ourselves unable to agree with the above submissions. This is not a case where a simple agreement was entered into between the plaintiffs and the defendants 1 and 2 for letting out the newly constructed building belonging to defendants 1 and 2 to the plaintiffs for starting a furniture showroom at Kaniyapuram . Defendants 1 and 2 who are husband and wife constructed the building by availing a loan from the H.D.F.C. Bank and in consideration of their promise to lease out the building to the plaintiff who is a reputed furniture manufacturer at Kottakkal in Malappuram District, the plaintiff had stood as security with the H.D.F.C. Bank and had issued six cheques to the Bank for a total amount of ` 3,60,000/-. The plaintiff had agreed to pay the rent (payable to the appellants) to H.D.F.C. Bank towards repayment of the loan amount. On 22-112006 the plaintiff had paid ` 4,00,000/- to the appellants towards advance. Another amount of Rs. 1 lakh was paid by the plaintiff to M/s. Johnsons Limited as instructed by the appellants. On 1-72007 a fresh agreement was executed between the plaintiff and the F.A.O. No. 4 of 2012 -:5:- appellants where under the appellants permitted the plaintiff to undertake the interior decoration work . The plaintiff had undertaken the work for Rs. 29 lakhs. According to the plaintiff, it had paid a total amount of ` 36,48,545/- to the appellants. At that juncture the plaintiff got the scent that the appellants were proposing to entrust the building to the 3[rd] defendant . It was at that juncture the plaintiff instituted the suit with a petition for interim injunction restraining the appellants from leasing out the building to anybody else other than the plaintiff. An order on that petition was averted by the appellants by undertaking that they will not alienate the building to third parties. They filed the written statement on 31-12-2007. Thereafter on 19-6-2008 the appellants leased the plaint schedule building to the 3[rd] defendant on a monthly rent of Rs. 2 lakhs after taking an advance of Rs. 20 lakhs from the 3[rd] defendant. Thereafter the 3[rd] defendant who was enjoying all the benefits including the interior decoration work undertaken by the plaintiff, got himself impleaded in the suit and contested the suit. The appellants who had already leased out the building to the 3[rd] defendant thereafter remained quiescent. They F.A.O. No. 4 of 2012 -:6:- were set ex parte on 5-1-2010. The suit was resisted by the 3[rd] defendant but was decreed as prayed for on 15-1-2010 against the appellants and the 3[rd] defendant. It was to protect the interest of the 3[rd] defendant from whom the appellants had collected Rs. 20 lakhs as advance, that they filed the application under Order IX Rule 13 with a petition to condone the inordinate delay of 160 days. 6. Even assuming that courts generally take a liberal view in the matter of condonation of delay, it is not the law that whatever be the length of delay it has to be condoned regardless of the lack of bona fides in the claim or without reference to the merits of the case (Vide M.K. Prasad v. P. Arumugam - 2001) 6 SCC 176, Balwant Singh v. Jagdish Singh - (2010) 8 SCC 685, Raman Gopi v. Kunju Raman Uthaman - 2011 (4) KLT 458, Primal v. Veena - 2011 (3) SCC 545; Aliyamma Isow v. Joseph - 2011 (3) KLT 286 and Valayudhan v. Deepa - 2012 (1) KLT 528) . 7. The second defendant examined as P.W. 1 before the court below had admitted that he was meeting the third defendant every month and he was going to the suit property every day . He F.A.O. No. 4 of 2012 -:7:- further admitted that he had leased the plaint schedule building to the 3[rd] defendant pending suit and third defendant contested the suit and there is no adverse interest between him and the third defendant. This will show that defendants 1 and 2 after agreeing to let out the three-storied building to the plaintiff and after inducing the plaintiff to undertake huge financial commitments to the HDFC Bank and after the plaintiff invested huge amounts for the interior decoration, contrary to the undertaking given by them before the court below , were entrusting the property to the 3[rd] defendant on 19-06-2008 and it was the third defendant who was thereafter in possession and enjoyment of the premises. That explains the fact as to why the suit was subsequently contested by the 3[rd] defendant alone. It is after the third defendant got worsted in the suit, that defendants 1 and 2 came to the picture evidently to salvage the third defendant. They were visiting the plaint schedule building every day and meeting the 3[rd] defendant every month but were still pretending to know nothing about the case. If they had made genuine enquiries about the case with the advocate engaged by them they would have come to know of the F.A.O. No. 4 of 2012 -:8:- progression of the case. They have no case that they were misinformed by the Advocate that the case was still pending when as a matter of fact it had resulted in the impugned decree. We, therefore, do not find any iota of good faith in the applications filed by the appellants herein before the court below. The court below was fully justified in dismissing the application to condone the inordinate delay and consequently the application under Order IX Rule 13 C.P.C. We do not find any good ground to interfere with the impugned orders. This appeal is accordingly dismissed. Dated this the 2[nd] day of March, 2012. V. RAMKUMAR, JUDGE. K.HARILAL, JUDGE. ani/