IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 RSA.No. 54 of 2010() -------------------- AS.2/2009 of DISTRICT COURT, KALPETTA, WAYANAD OS.55/2005 of SUB COURT, SULTHAN BATHERY .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------------- 1. MANNAMKANDY MOIDEEN KOYA @ M.K.MOIDEEN KOYA, S/O.YOUSUF, MANNAMKANDY HOUSE, MARKET ROAD, MEENANGADI P.O., PURAKKADI AMSOM DESOM, BATHERY TALUK, WAYANAD DISTRICT. 2. MANNAMKANDY UMMER, S/O.YOUSUF, MANNAMKANDY HOUSE, MARKET ROAD, MEENANGADI P.O., PURAKKADI AMSOM DESOM, BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------- MAMMOKAR ABDULLA, S/O.ANDRU HAJI, THESNI MANZIL, MUTTIL P.O., MUTTIL AMSOM DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.MATHEW KURIAKOSE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NOS.683 & 1344/2010 IN RSA NO.54/2010 DISMISSED 17/06/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 54 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2010. JUDGMENT The defendants in O.S. 55 of 2005 before the Sub Court, Sulthan Bathery are the appellants before this court. They suffered a money decree. The parties and facts are hereinafter referred as they are available before the court below. 2. The suit was based on Ext.A2 cheque said to have been issued by the first appellant. According to the plaintiff, the defendants borrowed a sum of Rs.2,00,000/- and Ext.A1 agreement dated 1.4.2002 was entered into. At the time of entering into the agreement, it is alleged that the first defendant had issued two undated cheques in favour of the plaintiff. Inspite of several demands, the amount was not paid. Hence the suit. 3. The defendants resisted the suit. According to them, the suit is not maintainable and also that it was RSA.54/2010. 2 barred by limitation. They denied the borrowel and issuance of the cheque. According to them, there was no money transaction between them and the plaintiff. The defendants say that they came into contact with the plaintiff through one Salim. The plaintiff had given money to Salim for going abroad. As security the plaintiff demanded three cheque leaves and signed blank stamp papers from the defendants. It was under those circumstances that blank stamp papers and cheques came to be issued to the plaintiff. They denied that they had received any amount from the plaintiff. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants examined D.W.1. On an appreciation of the evidence in the case, the trial court formed an opinion that the plaintiff has established his claim and accordingly decreed the suit. RSA.54/2010. 3 5. The defendants carried the matter in appeal as A.S. 2 of 2009. Since there was delay of 617 days in filing the appeal, they filed I.A. 329 of 2009 to condone the delay. That was opposed by the respondent in the petition. The lower appellate court chose to dismiss the delay condonation petition and consequently the appeal. That brings the defendants to this court. 6. It is clear that there has been no consideration of the appeal on merits by the lower appellate court. True, there may not be convincing reasons for condoning the delay. Nevertheless, the court below ought to have condoned the delay and disposed of the matter on merits and no prejudice would be caused to the respondent by doing that. Instead, the court below chose to dismiss the interlocutory application for condonation of delay and thereafter the appeal. The act of the lower appellate court has caused considerable prejudice to the appellants, even though no proper explanation was offered for the delay. RSA.54/2010. 4 In the result, this appeal is allowed, the order dismissing the delay petition is set aside so also the judgment and decree in A.S. 2 of 2009 and the lower appellate court is directed to take back A.S. 2 of 2009 on file and dispose it of on merits after hearing both sides as expeditiously as possible at any rate within a period of four months from the date of appearance of the parties before the lower appellate court. Parties shall appear before the court below on 6.7.2010. The appellants shall deposit a sum of Rs.50,000/- in cash before the court below and furnish security for the balance decree amount within one month from today. The respondent is allowed to withdraw the amount of Rs.50,000/- on furnishing sufficient security to the satisfaction of the court below. Office shall send back the records forthwith, if called for. P. BHAVADASAN, JUDGE sb.