ELSTONE TEA ESTAES LIMITED Vs. PIUS C. MUNDADAN

JUDGEMENT

(1.) Petitioners are the judgment debtors in E.P.No.42/2018 and the defendants in O.S.No.133/2013 on the files of the Sub Court, Ernakulam. The suit was filed by the first respondent seeking recovery of an amount of Rs.17,00,000.00 with interest and costs. The suit was originally filed against the first petitioner company and its Managing Director. The Managing Director/second defendant expired on 3/12/2013. Thereupon, petitioners 2 to 4 and the second respondent herein were impleaded as additional defendants in their capacity as legal heirs of the deceased second defendant. Failure of the defendants to file written statement resulted in the suit being decreed ex parte on 13/6/2016. Thereupon, the first respondent initiated execution proceedings for realisation of the decretal amount. On being served with notice in E.P.No.42/2018 filed by the first respondent before the Sub Court, Sulthanbathery, the petitioners moved I.A.Nos.4000 and 4001 of 2018 before the Sub Court, Ernakulam seeking to set aside the ex parte decree, after condoning the delay of 838 days. Notice sent to the first respondent in those interlocutory applications was returned unserved. The court below therefore directed the petitioners to furnish the first respondent's correct address. Failure to furnish the correct address resulted in I.A.Nos.4000 and 4001 of 2018 being dismissed. The petitioners thereupon moved I.A.Nos.2486, 2487, 2488 and 2489 of 2019 for restoring I.A.Nos. 4000 and 4001 of 2018, after condoning the delay of 102 days in filing the restoration applications. By Ext.P14 order, the court below dismissed I.A.Nos.2486, 2487, 2488 and 2489 of 2019. Hence, this Original Petition.

(2.) Heard Advocates Varghese C. Kuriakose for the petitioners, Dinesh R. Shenoy for the first respondent and S. Vinod Bhatt for the second respondent.

(3.) Learned Counsel for the petitioners contended that the first respondent had filed the suit raising an unconscionable claim of Rs.17,00,000.00 towards Advocate's fees. The suit was decreed ex parte for reasons beyond the control of the petitioners and unless permitted to contest the suit on merits, they will be put to extreme prejudice and loss. It is contended that the first respondent had deliberately evaded the notice issued in I.A.Nos. 4000 and 4001 of 2018. Being a practicing lawyer, the first respondent ought to have accept the notice, instead of causing the notice to be returned unserved. Since the applications for setting aside the ex parte decree and condonation of delay were dismissed without taking into account these crucial aspects, petitioners had filed I.A.Nos.2486, 2487, 2488 and 2489 of 2019. The delay in filing the restoration applications being only 102 days and the petitioners having offered sufficient explanation, the court below committed gross illegality in refusing to condone the delay. Dismissal of the delay condonation applications is against the settled position that ordinarily a litigation should be adjudicated on merits and not terminated by default, either of the plaintiff or the defendant. Further, it is not necessary to explain every day's delay and the expression 'sufficient cause' employed in Sec. 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner. In support of the contentions, learned Counsel placed reliance on the following decisions of the Apex court; State of Nagaland v. Lipokao [2005 (3) SCC 752], Subbarayudu K and others v. Special Deputy Collector (Land Acquisition) [2017 KHC 6997], Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others [1987 (2) SCC 107], Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [2013 (12) SCC 649] and Robin Thapa v. Rohit Dora [2019 (7) SCC 359].