IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 MSA.No. 2 of 2006() ------------------- AS.3/2006 of ADDL. DISTRICT COURT, PARAVUR IP.1/1998 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANTS: APPELLANTS/PETITIONERS --------------------------------------------------------------------- 1. K.P.POULOSE, AGED 62 YEARS, S/O. PAILY, KIZHAKUMTHALA HOUSE, CHELAMATTOM KARA, PERUMBAVOOR VILLAGE. 2. ANNIE POULOSE, AGED 52 YEARS, W/O. POULOSE, KIZHAKKUMTHALA HOUSE, CHELAMATTOM KARA, PERUMBAVOOR VILLAGE. BY ADV. SRI.JOY GEORGE SMT.ANU VENU RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. 2. KERALA FINANCIAL CORPORATION, REPRESENTED BY DISTRICT MANAGER, KERALA FINANCIAL CORPORATION, KALOOR, ERNAKULAM. 3. NARAYANAN NAMBOOTHIRI, AGED 62 YEARS, S/O. KRISHNAN NAMBOOTHIRI, THOTTAMITTATH ILLAM, CHELAMATTAM KARA, PERUMBAVOOR VILLAGE. 4. ANTONY, AGED 58 YEARS, PARAKKADON, CHELAMATTAM KARA, PERUMBAVOOR VILLAGE. 5. OUSEPH VARGHESE, AGED 66 YEARS, KIZHAKKUMTHALA, CHELAMATTAM KARA, PERUMBAVOOR VILLAGE. BY GOVERNMENT PLEADER SHRI. SURESH KUMAR FOR R2 SRI.K.JAJU BABU,SC,KERALA FINANCIAL COR FOR R2 THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- M.S.A No. 2 OF 2006 ------------------------------- Dated this the 24th November, 2008. JUDGMENT Heard both sides. 2. Petitioners in I.P.1/1998 on the file of the Sub Court, North Paravur are the appellants in this second appeal. The said I.P was filed by the appellants under Section 10 of the Kerala Insolvency Act, 1957 to declare them as insolvent. As per order dated 4.11.2004 the learned Sub Judge, after trial, dismissed the petition. Aggrieved by the order passed by the Sub Court, the appellants herein preferred an appeal before the District Court, North Paravur as A.S.3/2006. Since the appeal was filed out of time, they also filed I.A.7/2006 to condone the delay of 79 days in filing the appeal. The reason stated in support of the delay petition was the shifting of practice of the appellants' former counsel from Perumbavoor to Ernakulam and also a wrong legal advise given by the former counsel to the effect that the appeal ought to have been filed before the High Court for which the appellants had a larger period of limitation. M.S.A. 2/2006 2 3. The lower appellate court dismissed the said petition by a cryptic order dated 10.3.2006 holding that no affidavit from the counsel had been filed and that the delay was not properly explained. The court also observed that the appellants did not adduce evidence in support of the reasons put forward. 4. The lower appellate court was, in my view, taking a rigid view in the matter of condonation of delay. After the decision of the Apex Court in Collector, Land Acquisition, Anantnag v. Ms/ Katiji and others (AIR 1987 S.C.1353) the preponderance of judicial opinion has always been in favour of condoning the delay unless the party is found guilty of gross negligence and laches. Even in such cases, the court can, in a given case, compensate the respondent by putting the applicant on terms. Accordingly the order passed on the delay petition is set aside and the delay will stand condoned. A.S.3/2006 shall stand restored to file and shall be disposed of on merits after hearing both sides. The parties shall appear before the lower appellate court without any further notice on 19.12.2008. M.S.A. 2/2006 3 M.S.A is disposed of accordingly. V. RAMKUMAR JUDGE jj