Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942 FAO.No.293 OF 2012 AGAINST THE JUDGMENT IN OS 58/2004 DATED 13-04-2012 OF SUB COURT, PATHANAMTHITTA APPELLANT: NAZAR AGED 33 YEARS S/O.SULAIMAN RAWTHER PLAMMOOTTIL KIZHAKKETHIL KAMPALADI MURI POORUVAZHU VILLAGE BY ADV. SRI.C.B.SREEKUMAR RESPONDENTS:
1 MUNICIPALITY, ADOOR,REPRESENTED BY SECRETARY, ADOOR TALUK,PATHANAMTHITTA DISTRICT, PIN-689 645. 2 BASHEER, (DECEASED) AGED 59 YEARS,S/O.IBRAHIMKUTTY, POORUVAZHY VILLAGE, KOLLAM DISTRICT,PIN-690 520. 3 SHAJI, AGED 31 YEARS,S/O.SULAIMAN RAWTHER, PLAMOOTTIL KIZHAKKETHIL, KAMPALADI MURI,POORUVAZHY VILLAGE,KOLLAM DISTRICT,PIN-690 520. ADDITIONAL R4 TO R7 IMPLEADED. 4 REJULA BEEVI, AGED 56 YEARS,W/O.LATE BASHEER, F.A.O.No.293/2012 2
5 SHEEBA AZEZ, 6 BEEJA RAFI, 7 ANEESHA SABU, THE PETITIONERS ARE IMPLEADED AS ADDITIONAL 4TH,5TH,6TH AND 7TH RESPONDENTS IN THE APPEAL AS PER THE ORDER DTD. 18.1.21 IN I.A.1/2019 OF HON'BLE AH(J) AND PVKK(J) R1 BY ADV. SMT.DIVYA C.MOHAN R1 BY ADV. SRI.V.N.HARIDAS R1 BY ADV. SMT.KRIPA ELIZABETH MATHEWS R1 BY ADV. SRI.V.M.SYAM KUMAR R1 BY ADV. SRI.SAJJU.S R1 BY ADV. SRI.K.SHAJ R4, R6-7 BY ADV. N.REJO R5 BY ADV. N.REJO-R-740
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.No.293/2012 3
JUDGMENT
Dated this the 1st day of February 2021
A.Hariprasad, J.
Heard the learned counsel for the appellant and respondents.
2. Appellant is the third defendant in O.S.No.58 of 2004
on the file of the Subordinate Judge's Court, Pathanamthitta. The first respondent Municipality is the plaintiff in the suit. The suit is one for realisation of money against the three defendants. According to the plaintiff - Municipality, the defendants bid an auction to vend meat in the Municipality limits for a certain sum
and they defaulted making the payments. Hence the Municipality approached the court below for recovery of money. The suit was decreed ex-parte on 6.1.2004. Thereafter with a delay of 2265 days, the appellant filed an application under
Order 9 Rule 13 C.P.C. to set aside the ex-parte decree. The
trial court considered the delay condonation application filed under Section 5 of the Limitation Act, 1963 and the application F.A.O.No.293/2012 4
filed under Order 9 Rule 13 C.P.C. for setting aside ex-parte decree together. In the opinion of the trial court, the appellant failed to show sufficient cause for condonation of delay and therefore, dismissed the application. Thereafter, the petition to set aside ex-parte decree was also dismissed. Aggrieved by the findings, the appellant has preferred this appeal.
3. We have gone through the materials placed before us. The appeal is of the year 2012 and the suit is of the year
2004. Considering the time elapsed between the institution of
the suit and this day, we are of the view that the matter shall not be prolonging any further. The learned counsel for the appellant submitted that the predominant dispute is only regarding the rate of interest shown in the ex-parte decree. As rightly pointed out, the transaction between the parties and the defendants' liability
are covered by various documents. There cannot be much scope for any dispute in those areas.
4. Having regard to the facts and circumstances, it is seen that the court below decreed the suit with 24% interest pendente lite and 9% after the decree. Considering the fact that F.A.O.No.293/2012 5 the plaintiff is a Municipality and the defendants are auctioneers, we find that the rate fixed by court below is highly
unconscionable. We record the submission of the learned counsel for the appellant/3rd defendant that the appellant has no dispute regarding the principal amount involved in the suit. The dispute is only regarding the rate of interest claimed by the plaintiff and allowed by the court. We fix the rate of interest pendente lite at 9% and future interest at 6% in accordance with Section 34 C.P.C. Since no challenge against the decree is made before this Court in a regular appeal, we find it legally difficult to upset the decree. However, with the following observations, we dispose of the appeal.
The order passed by the court of Subordinate Judge of
Pathanamthitta on I.A.No.1664 and 1663 of 2010 in O.S.No.58 of 2004 is hereby set aside. The delay of 2265 days caused in filing an application under Order 9 Rule 13 C.P.C. is hereby condoned. The application under Order 9 Rule 13 C.P.C. is allowed. The ex-parte decree is set aside. The court below shall dispose of the suit within a period of two weeks from the
F.A.O.No.293/2012 6 date of receipt of a certified copy of the judgment decreeing the suit with 9% interest pendente lite and 6% interest after the decree in accordance with Section 34 C.P.C. The parties shall appear before the court below on 8th of February, 2021. Sd/- A.HARIPRASAD JUDGE Sd/- T.V.ANILKUMAR JUDGE csl