Kerala High Court
Rajesh John vs M/S. Muthoot Vehicle And Asset Finance ...
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940
OP(C).No. 2188 of 2013(O)
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AGAINST THE ORDER/JUDGMENT IN EA.205/2013 IN E.P.96/2010 IN AOP 393/2009 of D.C.
& SESSIONS COURT,KOZHIKODE
PETITIONER(S)/PETITIONER/AUCTION PURCHASER:
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RAJESH JOHN,
S/O.JOHN, THADATHIL HOUSE, MALAPPARAMBA, CHEVAYOOR
AMSOM DESOM, KOZHIKODE DISTRICT.
BY ADVS.SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENT(S)/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTORS:
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1. M/S. MUTHOOT VEHICLE AND ASSET FINANCE LIMITED
REGISTERED OFFICE AT MUTHOOT CHAMBERS, KURIAN TOWERS,
BENERJI ROAD, KOCHI-682018, REPRESENTED BY POWER OF
ATTORNEY HOLDER BABITHA K.C., D/O.K.C.BALAKRISHNAN.
2. RIYAS
NANMANAKANDI P.O., PERAMBRA, PERAMBRA PANCHAYATH,
KOZHIKODE-673525 [DELETED}*
3. SAINABA
W/O.KUNHAMMAD PARAKANDI HOUSE, PERAMBRA P.O.,
KOZHIKODE-673525.
4. AMMED
S/O.MAMMALI, VADAKKEKADU, PUTHIYAKAVU, CHERUVATH
HOUSE, MEPPAYYUR P.O., KOZHIKODE-673524.
*R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE
ORDER DATED 22/03/2017 IN I.A.NO.399/2017.
R1 BY ADV. SRI.SABU S.KALLARAMOOLA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18-07-2018,
THE COURT ON 01-08-2018 DELIVERED THE FOLLOWING:
OP(C).No. 2188 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1 : TRUE COPY OF THE RECEIPT SHOWING THE DEPOSIT OF 25% OF THE
AUCTION AMOUNT.
EXHIBIT P2 : TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION EA 205/2013
IN EP 96 OF 2010 IN A.O.P. NO.393 OF 2009 DT.30-3-2013.
EXHIBIT P3 : TRUE COPY OF THE ORDER IN EA 205 OF 2013 IN EP 96 OF 2010 IN AOP
393 OF 2009 DT.5-4-2013
RESPONDENT(S)' EXHIBITS:
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NIL
/TRUE COPY/
PA TO JUDGE
dkr
ASHOK MENON, J.
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O.P.(C) No. 2188 of 2013
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Dated this the 1st day of August, 2018
JUDGMENT
The petitioner, an auction purchaser in E.P.No.96/2010 in A.O.P.No.393/2009 on the file of the District Court, Kozhikode, a proceedings between the 1st respondent and other respondents, is aggrieved by the impugned order at Ext.P3 of the District Judge dated 05.04.2013, wherein, the request under Section 148, C.P.C. for extension of time stipulated for depositing 75 % of the balance sale price under under Rule 85 of Order XXI C.P.C was rejected by the learned District Judge on the ground that the time to deposit balance sale consideration is fixed as 15 days under Rule 85, Order XXI C.P.C. and that under Section 148, read with Section 151, the Court cannot grant extension of time as the time is fixed by the Statute, and that extension of time under Section 148, C.P.C. can be granted only when the time is fixed by the Court. Aggrieved by this order, the petitioner approaches this Court for reliefs. OP(C) 2188/2013 2
2. Heard the learned Counsel for the petitioner and the 1 st respondent. The 1st respondent is the decree holder and he has no serious objections regarding the extension of time. The other respondents, though served with notice, did not appear.
3. The learned Counsel for the petitioner relies on the decision reported in Kombi v. National Highway Authority, 2012 KHC 947, to support his argument that under Section 148, C.P.C. the Court has ample power to grant extension of time even beyond the period of 30 days stipulated under Section 148, C.P.C.
4. In the decision cited above, the petitioner therein had filed a petition under Section 34 of the Arbitration Act and certain defects were noticed by the Registry and 15 days time was granted to re-present the petition after curing the defects. There was delay of 60 days in representing the petition, and the Court held that under Section 148, it is not possible for the Court to enlarge the time beyond the period of 30 days and hence rejected the petition. This Court held that the impugned order cannot be sustained and that the power to extend the time under Section 148, C.P.C. can be condoned even beyond the period of 30 days, since the Court has OP(C) 2188/2013 3 inherent powers under Section 151 and the provisions under the C.P.C. is not to promote failure of justice and Section 148 will have to be read down to mean that where sufficient cause exists beyond the control of the party, the Court would have inherent power to extend the time beyond 30 days.
5. In the instant case, the petitioner had sought extension of time not fixed by the Court, but under the provisions of the C.P.C. The question for determination of this Court is whether the statutory period fixed by the C.P.C. could be enlarged by the Court resorting to Sections 148 and 151 of C.P.C.
6. Rule 85 of Order XXI, C.P.C. reads thus,-
b