IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 FAO.No. 159 of 2009 --------------------- AS.238/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.403/2006 of I ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT/PETITIONER/PLAINTIFF: ---------------------------------------- ING VYSYA BANK LIMITED, A REGISTERED BANKING COMPANY, HAVING ITS REGISTERED OFFICE AT BANGLORE AND BRANCHES, AMONG OTHER PLACES AT M.G. ROAD, RAVIPURAM, COCHIN-16, REP. BY THE REGIONAL RECOVERY MANAGER, ING VYSYA BANK LIMITED, RETAIN BANKING DIVISION BY ADV. MR.R.S.KALKURA MR.M.S.KALESH MR.HARISH GOPINATH MR.V.VINAY MENON MR.M.AJAY (IRUMPANAM) RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------- 1. SREEKALA PILLAI, AGED 47 YEARS, RESIDING AT 33/22, SREESHAILAM, ELAMAKKARA P.O., KOCHI-26, NOW RESIDING AT SRINIVAS, PUTHIYACAVU MAVELIKKARA P.O., ALAPPUZHA DIST. 2. DINESAN K, S/O. KOCHUKUTTAN, RESIDING AT MANALPARAMBU, CHERIAPALLANTHARATHU NEAR, THATTUKADAVU PALAM, NORTH PARAVOOR. ADV. MR.V.V.SIDHARTHAN FOR R2 MR.MVS.NAMBOOTHIRY FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ F.A.O.No.159 Of 2009 ---------------------- Dated this the 13th day of September, 2010. J U D G M E N T Appellant is the appellant in A.S.No.238 of 2007 of the 6th Additional District Court, Ernakulam, which arises from O.S.No.403 of 2006 of the Munsiff Court, Ernakulam. The appeal preferred by the petitioner happened to be dismissed for default on 7.12.2007. The petitioner preferred I.A.Nos.5605 & 7658 of 2008 for re-admission of the appeal and for condoning the delay of 206 days in filing the application to re-admit the appeal. 2. In the affidavit filed in support of the I.As, petitioner sweared that on 30.7.2008 when the petitioner made enquiries as to the fate of the case with the counsel, petitioner came to know that the advocate clerk has failed to note the posting dates of the appeal since he lost his diary. The petitioner in the affidavit further sweared that the advocate clerk noticed this fact only when the petitioner had enquired about the appeal filed by them on 30.07.2008 and the fact of dismissal of the appeal on 7.12.2007 was noticed only thereafter. The petitioner further F.A.O.No.159 Of 2009 ::2:: submitted before the court below that due to the omission on the part of the clerk to note the posting date the case happened to be dismissed and therefore prayed to re-admit the appeal and condone the delay of 206 days in filing the re-admission petition. 3. The application was seriously opposed by the respondent. The appellate court considered the respective contentions of the parties. The appellate court disbelieved the contentions of the appellant and held that there is no sufficient reason to re-admit the appeal. The appellate court held that there is no sufficient reason to condone the delay in filing the petition for re-admission. Thus the appellate court dismissed both I.As. 4. The learned counsel for the appellant submitted that the appellant had been seriously prosecuting the appeal and in fact there was no latches on his part in the conduct of the appeal. The appeal happened to be dismissed for default on the day when there was no representation. The reason for the non-appearance of the counsel on that day has been explained in detail in the affidavit filed in support of the petition for condoning the delay. F.A.O.No.159 Of 2009 ::3:: It is a fact that the appeal happened to be dismissed without considering the contention s of the appellant on merits. In the interest of justice, the appeal should have been re-admitted at least on terms. The lower appellate court did not consider the fact that serious prejudice and injury will be caused to the appellant since the appeal has been dismissed for default. Accepting the explanation offered by the appellant this Court is of the view that the applications should have been allowed on terms. In the result, I.A.Nos.5605 & 7658 of 2008 in A.S.No.238 of 2007 on the file of the 6th Additional District Court, Ernakulam are allowed. There will be a direction to the District Court to hear and dispose of the appeal within four months from today. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-