The Federal Bank Limited v. P. J. Thomas and Elsamma Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 FAO.No. 203 of 2007 --------------------------AGAINST THE ORDER DATED 21/03/2004 IN IA.3244/04 IN OS.490/1999 of I ADDL.SUB COURT, TRIVANDRUM .................... ## APPELLANT/PLAINTIFF: THE FEDERAL BANK LIMITED, ALUVA (HEAD OFFICE), HAVING ITS BRANCH AT PALAYAM, TRIVANDRUM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENTS/DEFENDANTS: 1. P.J. THOMAS, S/O. JOSEPH, PERMANENTLY RESIDING AT TC.14/1935, MEDES LANE, PALAYAM, THIRUVANANTHAPURAM. 2. ELSAMMA THOMAS, W/O. P.J.THOMAS, PERMANENTLY RESIDING AT TC.14/1935, MEDES LANE, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.R.PARTHASARATHY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON21/07/2010 ALONG WITH UNNUMBERED RFA OF 2009, THE COURT ON 30/06/2011 DELIVERED THE FOLLOWING: ## **APPENDIX** ANNEXURE-A1 COPY OF THE PLAINT IN OS 490/99 BEFORE SUB COURT, THIRUVANANTHAPURAM ANNEXURE-A2 COPY OF THE WRITTEN STATEMENT IN OS 490/99 BEFORE DO. DO. ANNEXURE-A3 COPY OF THE PROOF AFFIDAVIT FILED BY THE PLAINTIFF'S MANAGER IN OS 490/99 BEFORE DO. DO. ANNEXURE-A4 COPY OF THE JUDGMENT DT. 18.12.03 IN OS 490/99 BEFORE DO. DO. ANNEXURE-A5 COPY OF THE DECREE DT. DO. DO. ANNEXURE-A6 COPY OF THE AFFIDAVIT FILED BY THE PLAINTIFF FOR REFUND OF HALF THE COURT FEE ANNEXURE-A7 COPY OF THE CHEQUE APPLICATION ANNEXURE-A8 COPY OF THE EXECUTION PETITION FILED BY THE PLAINTIFF ANNEXURE-A8(a) COPY OF THE AFFIDAVIT FILED IN SUPPORT OF ANNEXURE-A8 ANNEXURE-A9 COPY OF OA 329/06 FILED BEFORE THE DRT AT ERNAKULAM ANNEXURE-A10 COPY OF IA 3245/04 FILED IN OS 490/99 BEFORE SUB COURT, TRIVANDRUM ANNEXURE-A10(a) COPY OF IA 3244/04 FILED IN DO. DO. ANNEXURE-A11 CERTIFIED COPY OF THE ORDER DT. 21.3.05 IN IA 3244/04 ANNEXURE-A12 COPY OF NOTICE ISSUED BY THE BANK UNDER S.13(2) OF SECURITISATION ACT ANNEXURE-A13 COPY OF THE REPLY SENT BY THE DEFENDANTS DT. 1.3.07 TO ANNEXURE-A12 ANNEXURE-A14 AFFIDAVIT OF THE COUNSEL FOR PLAINTIFF /TRUE COPY/ ## A.K.Basheer & M.L.Joseph Francis, JJ. --------------------------------------------------------- ## F.A.ONo.203/2007 & Unnumbered Regular First Appeal of 2009 --------------------------------------------------------- Dated this the 30[th] day of June, 2011 ## **JUDGMENT** ## **Basheer, J.** This unnumbered Regular First Appeal has been posted before the Bench along with the captioned connected appeal in view of the doubt raised by the registry regarding its maintainability. 2. Appellant is the plaintiff in O.S.No.490/1999 on the file of the Additional subordinate Judge's Court, Thiruvananthapuram. The said suit, which was instituted for realisation of money allegedly due from the respondents/defendants under a loan account, was decreed by the court below on December 18, 2003 when the defendants withdrew their contentions as endorsed by their counsel on the written statement. Half court fee was ordered to be refunded to the plaintiff. 3. Thereafter, the plaintiff filed a petition for execution before the Debt Recovery Tribunal, Ernakulam in O.A.No.329/2006 since the decretal amount exceeded Rs.10 lakhs. At that stage, respondents/ defendants reported before the Tribunal that the decree passed against them had been already set aside by the trial court itself on a review Unnumbered RFA/09 & FAO 203/07 2 application filed by them. It appears that the contention of the respondents/defendants in the review petition was that their counsel had reported no instructions without their knowledge or authority. The said order passed by the Subordinate Judge's Court in the review petition on March 21, 2005 is under challenge in F.A.O.No.203/2007. 4. Later, on July 29, 2005, the Subordinate Judge's Court dismissed the suit since the plaintiff and his counsel were absent. The said judgment is under challenge in the unnumbered Regular First Appeal. 5. Sri.Mohan Jacob George, learned counsel for the appellant, has placed reliance on a large number of decisions in support of his contentions raised in the two appeals. He points out that the respondents had not paid any court fee on the review petition. But still, the review petition was allowed without hearing the appellant/ plaintiff. Still further, when the court below took up the suit for consideration later, there should have been a proper application of mind before dismissing the suit for non prosecution in a very casual and lackadaisical manner. The impugned judgment being a dependent order, there is absolutely no legal infirmity or procedural irregularity in entertaining this appeal before this Court. Unnumbered RFA/09 & FAO 203/07 3 6. Per contra, it is contended by Sri.B.Krishnan, learned counsel for the respondents, that remedy of the appellant is to file an application to set aside the decree under Oder IX of Code of Civil Procedure. He invites our attention to the decisions of the Apex Court in **Vareed Jacob v. Sosamma Geevarghese and others** ((2004) 6 SCC 378) and also in **Rekha Mukherjee v. Ashis Kumar Das and others** ((2005) 3 SCC 427). He further submits that the contention of the appellant that he was unaware of the order passed in the Review Petition is evidently incorrect as could be seen from the averments in the memorandum of appeal in F.A.O.No.203/2007. 7. Several decisions have been cited by learned counsel for the appellant also. [ **Salil Dutta v. T.M. And M.C.Private Ltd.** ((1993) 2 SCC 185), **N.Krishna Iyer v. Lakshmi Ammal** (1971 KLT 182), **Balraj Taneja and another v. Sunil Madan and Another** ((1999) 8 SCC 396), **Rani Kusum (Smt) v. Kanchan Devi (Smt) and others** ((2005) 6 SCC 705), **Shaikh Salim Haji Abdul Khayumsab v. Kumar and another** ((2006) 1 SCC 46), **Owners and Parties interested in M.V. “Valipero” v. Fernandeo Lopez and others** ((1989) 4 SCC 671), **G.Ramgowda, Major and others v. Special Land Acquisition Officer, Bangalore** ((1988) 2 SCC 142), **Mohanachandran Pillai v.** Unnumbered RFA/09 & FAO 203/07 4 **Ramachandran (** 1999 (3) KLT 704), **Rikhabsao Nathusao Jain v. Corporation of the City of Nagpur and others** ((2009) 1 SCC 240), **Thomas v.Mukunda Manon** (1992 (2) KLT 9), **Ramankutty Guptan v. Avara** ((1994) 2 SCC 642)]. 8. We have carefully perused the order passed by the trial court in the review petition. The order reads thus: “Petitioner represented. No representation for the counter petitioner. Notice already served. Heard. Perused the records. In the interest of justice I.A. Is allowed. Accordingly, the decree is set aside. No costs. Put up the file.” 9. As has been noticed already, the court below took up the suit for further consideration on July 29, 2005 and it was dismissed for default on that day. 10. It is pertinent to note that the defendants in the suit were represented by Adv. Smt.Valsa John in the suit. The decree was passed by the court below in the presence of the above counsel by the then Presiding Judge. 11. The review petition was filed on July 30, 2004 by another counsel. It is true that the review petition was accompanied by an affidavit and petition to condone the delay of 196 days in filing the same. In the affidavit, defendant No.1 tacitly admitted that his counsel Unnumbered RFA/09 & FAO 203/07 5 had endorsed in the written statement that the contentions were being withdrawn. The court had passed the decree on the basis of the said endorsement. But, according to the defendants, he had not authorised his counsel to withdraw his contentions. The learned Subordinate Judge before whom the review petition came up on March 21, 2005 allowed the said petition and set aide the decree. In our view, the court below ought not to have set aside the decree and judgment in such a casual manner and that too on a review petition filed by the defendants through a different counsel. As rightly pointed out by the learned counsel for the appellant, the review petition does not indicate that any court fee had been paid by the defendants. In that view of the matter also we have no hesitation to set aside the impugned order passed by the court in I.A. (RP)No.3244/2004 in O.S.No.490/1999 on the file of Additional Subordinate Judge's Court, Thiruvananthapuram. F.A.O.No.203/2007 is accordingly allowed. 12. As has been mentioned earlier, the Registry has raised doubt about the maintainability of the Regular First Appeal filed by the appellant. Going by clause 2(b) of Code of Civil Procedure it cannot be said that the judgment impugned in the above appeal is a decree. Therefore, as rightly contended by Sri.B.Krishnan, learned counsel for the respondents, the appeal is not maintainable. The Registry is justified Unnumbered RFA/09 & FAO 203/07 6 in refusing to number the appeal. 13. But we have no doubt, in our mind, that the court below has committed serious illegality and irregularity while dealing with the case. It has already been noticed that the review petition was filed through a different counsel and that too without paying proper court fee on the review petition. Less said the better about the order passed by the court below on the review petition. Similarly, the manner in which the court below dealt with the suit is also equally unjustifiable. Keeping in view the entire facts and circumstances of the case, we have no hesitation to hold that the court below was not justified in dismissing the suit in such a casual manner. But since the said judgment is a dependent order it follows that in view of the judgment passed by us in F.A.O.No.203/2007 the said judgment dated July 29, 2005 will not survive. In that view of the matter, this Regular First Appeal is rejected. Registry shall refund the court fee paid on the memorandum of appeal to the appellant. The appeals are disposed of in the above terms. (A.K.Basheer, Judge ) (M.L.Joseph Francis, Judge) tkv