SOLOMAN FRANCIS ABRO Vs. I T C LIMITED

JUDGEMENT

(1.) Respondents herein had filed a Suit against the petitioners herein under Order XXXVII of the Code of Civil Procedure. As per the averments made in the plaint, the petitioner no.1 applied to the respondent for the post of Kitchen Trainee in the year 1987. He was selected for the kitchen training programme. He executed agreement/ service bond as well as promissory note in the sum of Rs.1 lakh. As per the service bond, after extensive training of the petitioner no. 1, he was to serve the respondent- Company for a period of not less than five years. On the petitioner no. 1 's breaching this stipulation he was to pay a sum of Rs.1 lakh by way of liquidated damages. Petitioner no.2 stood surety/ guarantee for due payment of this amount and in this background both the petitioners had executed a promissory note dated 1/7/1987 in the sum of Rs.1 lakh. However, the petitioner no.1 resigned from the services after serving respondent for about a year which resignation was accepted by the respondent vide tetter dated 17/4/1991 subject to claim under the bond/service Agreement dated 1/7/1987. As the petitioners did not pay the amount inspite of serving a legal notice, respondent/plaintiff filed Suit claiming a sum of Rs.3,14,000.00 under Order XXXVII. The break of this amount given in the plaint is as under:- <FRM>JUDGEMENT_881_AD(DEL)3_2001Html1.htm</FRM>

(2.) The petitioner no.1 was served with summons of judgment on 8/09/1994 and the petitioner no.2 was served on 7/09/1994. Both the petitioners are resident of Cochin and they were served with these summons at Cochin. Since the petitioners had already entered appearance in the Suit at an earlier stage and were represented by an advocate they contacted their advocate for moving application for leave to defend. The advocate prepared this application and sent the draft thereof to the petitioners on 14/09/1994. Petitioners sent the same back to their acquaintance, who was in touch with their advocate, on 20/09/1994. He .handed over the same to the advocate on 25/09/1994 and it was filed in the Court on 26/09/1994. Obviously there was delay in moving the application for leave to defend as it was filed beyond the period of ten days which is the limitation prescribed for moving such an application. Accordingly, application for condonation of delay was also filed alongwith the application for leave to defend stating the aforesaid facts and seeking condonation of delay. Both the applications were heard by the learned Trial Court. The learned Trial Court was not-convinced with the reason for condonation of delay holding that each days delay had not been explained. Notwithstanding this view on condonation of delay application, the Trial Court proceeded to examine the leave to defend application on merits and dismissed the same by the impugned Order dated 20/5/1995 holding that the defence plea raised by the petitioners was illusory, sham or practically moonshine. However, out of the various amounts claimed by the respondent, the Trial Court held that respondent was entitled to claim refund of Rs. 1 lakh on account of loan for training expenses and liquidated damages of Rs.1 lakh under the terms of Agreement dated 1/7/1987 but it was not entitled to either interest on the said amount or refund of Rs.42,000.00 which had been paid by the respondent to the petitioner no. 1 as stipend. Consequently, respondent's Suit in the sum of Rs.2 lakhs with proportionate cost and pendente lite interest 9% per annum has been decreed.

(3.) Show cause notice on this Revision Petition was issued on 16/08/1995 and stay of the operation of the impugned judgment and decree was granted. Ultimately by Order dated 9/4/1996, after hearing both the parties Revision Petition was admitted and Interim Order was made absolute till the disposal of the Revision Petition. Although this Petition was listed for final argument on various dates nobody appeared on behalf of the respondents. Ultimately arguments from the 'side of the petitioners were heard on 16/02/2001 and the case was reserved for judgment. The counsel for the petitioners also filed written arguments on 20/02/2001.