IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 FAO.No. 224 of 2010() -------------------------------- AGAINST THE ORDER DATED 24/01/2009 IN IA 6464 /2007 IN OS.517/2003 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/DEFENDANT --------------------------------------------------------- CYBELE HERBEL LABORATORIES PVT.LTD., REPRESENTED BY CHIEF EXECUTIVE P.N.BALARAM, RESIDING AT NIRMALYAM GREEN PARK,TRICHUR-22. BY ADV. SRI.T.M.CHANDRAN SRI.N.SUBRAMANIAM SRI.V.A.SASIDHARAN RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- M/S.HINDUSTAN HARDWARE STORES CLOTH BAZAR ROAD,ERNAKULAM,KOCHI-31, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.S.VENKITESWARA PAI,KALAPPARAMBATHU HOUSE, ALANGADU,ALUVA. BY ADVS. SRI.REJI GEORGE SMT.MANJU RAJAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- C.M.Appl.No.1429 OF 2010 & F.A.O.No.224 OF 2010 ------------------------------------------- Dated this the 6th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The defendant in a suit for money is the appellant. The plaintiff sued for recovery of an amount of Rs.2,26,636/- with future interest. It is a commercial transaction. The defence is set up by disputing some of the claims. Thereafter, the defendant did not appear. The suit was decreed ex parte. 2.The defendant applied to set aside the ex parte decree. That was dismissed for default as per the impugned order. Technically, the situation in hand could have been rectified if an application for restoration was filed invoking the provisions of Order IX Rule 9, in relation to the application under Order IX Rule 13, which was dismissed for default. But the defendant applied for the certified copy of the impugned order FAO.224/10 2 on the next day of its issuance. However, the endorsements on the certified copy would show that about one year was spent in collecting the certified copy. This is attributed to the negligence of the advocate's clerk in the office of the counsel appearing for the defendant in the trial court. This is the short ground on which condonation of delay is sought for. The appellant, also attributes different other personal reasons, including the unexpected death of his mother and also of his sister's son. He explains that the laches are not attributable to him and there is sufficient cause to condone the delay in filing this appeal. 3.We notice that a part of the amount of the plaint claim is admitted. Under such circumstances, ends of justice would be satisfied if the application to set aside the ex parte decree is restored by us, allowing C.M.Appl.No.1429 OF 2010 and F.A.O.No.224 OF 2010. However, this will be on condition that the admitted amounts in terms of the written statement FAO.224/10 3 and a further amount of Rs.5,000/- towards costs of this appeal is paid by the appealing defendant to the plaintiff, payable to the counsel appearing before this court, within one month from now, on proper receipt being issued by the counsel on behalf of the respondent plaintiff. If such payment is made, the application to set aside the ex parte decree, viz., I.A.No.6464/07 in O.S.No.517/03 of the Sub Court, Ernakulam will stand restored. The C.M.Application and the appeal are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.7/10.