REVATHY APARTMENTS PVT LTD Vs. DILEEP KUMAR

JUDGEMENT

(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 1st 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 agreement for sale. The suit was decreed ex- parte on 28.7.2015.

(2.) The 2nd appellant has filed an affidavit along with a petition to set aside the ex-parte decree passed against him and the 1st appellant company. According to the 2nd 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, 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 ill- health that the delay of 1160 days occurred in filing the application, to set aside the ex- 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 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 appearance, filed vakalath and contested for one year. The aforesaid interlocutory applications have been filed by the appellants, after defending the said EP for one year. In the said EP, the property of the 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.