Antony Dominic, J.

In 1991, the petitioners availed of a performance mobilisation guarantee of Rs.100 lakhs from the respondent bank. On its invocation, as on 9.5.1994, Rs. 45,43,376/- was due to the Bank. Though payment was defaulted, on 03.04.2008, petitioners paid Rs. 1.5 crores. In spite of it, the Bank now claims that more than Rs. 27 crores is due to it.

2. Petitioners are husband and wife and were the partners of a firm, M/s.Bainds Associates. In connection with a contract work that the firm had undertaken with the Konkan Railway Corporation, on 21.10.1991, as per Ext.R(p) sanction letter, the firm had availed of a performance mobilisation guarantee of Rs. 100 lakhs from the Bank. As security, apart from margin money deposit of 25% and a counter guarantee, a plot of land owned by M/s.Bainds Towers (Pvt) Ltd., a company, of which, the petitioners were the Directors, was mortgaged: On 9.5.1994, Konkan Railway Corporation invoked the Bank Guarantee and thereupon, the Bank paid Rs. 67.20 lakhs. After appropriating Rs. 21,76,624/ - provided as margin money, the Bank demanded payment of Rs. 45,43,376/- from the defaulters, viz., the firm, its partners, including the petitioners herein and the company.

3. Due to their failure to pay the amount demanded, on 5.09.1995, the Bank filed O.S.No.816 of 1995 before the Sub Court, Trivandrum. The Sub Court declared the defendants exparte and on 31.10.1996, by Ext.P 1, the suit was decreed as prayed for allowing the Bank to realise Rs. 58,07,134.05 with interest @23.25% with quarterly rest till realisation, with costs from the defendants and their assets. It was also decreed that if the defendants failed to pay the amount within 2 months, plaint A and B schedule properties can be brought to sale.

4. Subsequently, the Bank filed O.A.23 of 1999 before the Debt Recovery Tribunal (Kerala and Lakshadweep). The O.A. was allowed with costs of Rs. 12,000/- by Ext.R(e) final order. By this order, the Bank was allowed to realise Rs. 1,36,25,152.03 together with interest u, 23.25% with quarterly rest from 1.3.1999 till realisation, on Rs. 74,62,116.98. Thereafter, on an application filed by the Bank, the Tribunal passed Ext.R(f) order and by this order, the figure Rs. 74,62,116.98 occurring in para 7 of Ext.R(e) order was corrected to be read as Rs. 1,32,69,251.03.

5. In 2007, the petitioners, along with the firm and the company, filed I.A.Nos.1492/ 2007 and 1491/2007 before the DRT, Ernakulam, praying to set aside the ex parte decree passed by the Sub Court and to condone delay of 10 years and 10 months in applying for the same. Copies of these applications are Exts.P2 and P3 and Ext.R(g) is the counter affidavit filed by the Bank opposing LA. 1491/2007.

6. The contentions urged in Exts. P2 and P3 are mainly that; (1) Summons issued by the Sub Court were not served on the defendants, (2) From 1996, the petitioners are residing in Bahrain and that on account of the orders passed by Bahrain courts, 1st petitioner was restrained from travelling outside the country. It is also stated that permission sought for travelling to India was denied and that during this period his wife, the second petitioner, was also in Bahrain, (3) By order dated 4.8.1998, the judgment and decree were amended by the court without notice to them, (4) From the beginning Ist petitioner was trying to persuade the Bank to settle the liability and that relying on the ex parte judgment and decree illegally obtained, the Bank was making unreasonable demands, and(5)According to the petitioners, the delay of 10 years and 10 months was not will ful and should be condoned, lest serious injustice and prejudice would be caused to them. 32

7. When the aforesaid applications were pending consideration of the DRT, the Recovery Officer notified the mortgaged property for sale on 5.2.2008. Thereupon, the 1st petitioner filed W.P (C).No.2739/2008 before this Court. That writ petition was disposed of by Ext. P4 judgment, and this Court direc