IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 FAO.No. 100 of 2011() ---------------------------------- I.A.NO.1033/2010 IN O.S.NO.124/2008 OFSUB COURT, MANJERI ......... APPELLANT:(PETITIONER/PLAINTIFF): ----------------------------------------------------------- STATE BANK OF TRAVANCORE, REPRESENTED BY ITS MANAGER, AREACODE BRANCH. BY ADVS. SRI.T.SETHUMADHAVAN, SRI.KODOTH PUSHPARAJAN, SRI.K.JAYESH MOHANKUMAR, SMT. VANDANA MENON, SMT. ANJU P.NAIR. RESPONDENT(S): (RESPONDENT/DEFENDANTS): -------------------------------------------------------------------------- 1. M.K.MUSTHAFA, S/O.KUNHOYI, MADAVANKUNNATH HOUSE, CHANNAMANGALLOOR POST, THAZHEKODE VILLAGE, KOZHIKODE TALUK 673 001. 2. BINYAMEEN, S/O.MUHAMMED, PARIYIL HOUSE, CHANNAMANGALLOOR POST, THAZHEKODE VILLAGE, KOZHIKODE TALUK, PIN 673 001. 3. SAJITHA.M.K., W/O.M.K.MUSTHAFA, MADAVANKUNNATH HOUSE, CHANNAMANGALLOOR POST, THAZHEKODE VILLAGE, KOZHIKODE TALUK-673 001. R1 & R3 BY ADV. SRI.P.SAMSUDIN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY DELIVEREAD THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ F.A.O. No. 100 of 2011 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 11th day of April, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B. Radhakrishnan, J. The plaintiff, a public sector Bank, is before us in the appeal against dismissal of an application to restore a suit dismissed for default. The case was in the special list for trail. The counsel filed the application supported by his affidavit, saying that there was a mistake in noting the posting of the case in his diary. There was no delay in applying for restoring the dismissed suit. In fact, the suit was listed on 03.07.2010 and the application for restoration was filed on that day itself, saying that he unfortunately noted that the posting of the case is only on 08.07.2010. The court below took the view that the special list having been FAO No.100/2011 : 2 : published in the notice board of the Court and in the notice board of the Bar Association and the Advocate Clerks' Association, the application for restoration is to be dismissed on the ground that sufficient cause is not shown. 2. In our view, the approach adopted by the court below is erroneous. There is no wilful negligence when the application for restoration was filed immediately after the dismissal of the suit for default. In fact, if the application for restoration was allowed, the suit could have been disposed of in that month itself. There was no question of further delaying the litigation. Beyond this, it is the fact that public funds are involved when a public sector bank like SBT sues in a court. With this, we are inclined to take the view that the appeal is only to be allowed. 3. In the result, the appeal is allowed, setting FAO No.100/2011 : 3 : aside the impugned order and allowing I.A.No.1033/2010 in O.S. No.124/2008 of the Sub Court, Manjeri. Accordingly, the suit will stand restored to file and the court below shall proceed to decide on the matter. Parties are directed to appear before the court below on 23.05.2011. FAO ordered accordingly. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (P. BHAVADASAN, JUDGE) aks/11.04 // True Copy // P.A. To Judge