IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 FAO.No. 242 of 2009() --------------------- AGAINST THE ORDER IN IA.3789 & 3790/2007 IN OS.71/2002 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF --------------------------------------- THE TATA IRON & STEEL CO.LTD, A COMPANY REGISTERED UNDER THE COMPANIES ACT, AND HAVING ITS REGISTERED OFFICE AT BOMBAY HOUSE, 24,HOMI MODY ST.BOMBAY,400 001 AND REG.OFFICE AMON G ,2ND FLOOR, JUBILE BULD.45 MESUM ROAD, BANG.001 'E1 DORADO'2ND FLOOR,112 NUNGAMBAKKAM HIGH ROAD,03 BY ADV. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.P.F.ROSY RESPONDENT(S): DEFENDANTS ------------------------- 1. M/S.PATTASSERIL PVT.LTD, BOY'S HIGH SCHOOL ROAD, TRIPUNITHURA, KOCHI 682 301. 2. SRI.RAVINDRAN, S/O.ELIAS, DIRECTOR, M/SPATTASSERIL PVT.LTD, BOY'S HIGH SCHOOL ROAD, TRIPUNITHURA, KOCHI 682 301. 3. SRI.JIMMY, S/O.ELIAS,DIRECTOR, M/S.PATTASSERIL PVT.LTD, BOY'S SCHOOL ROAD, TRIPUNITHURA, KOCHI 682 301. R3 BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- F.A.O.No.242 OF 2009 ------------------------------------------- Dated this the 20th day of May, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.Third respondent appears. Notice to respondents 1 and 2 returned as unclaimed. It is declared that notice to those respondents have been duly served. 2.Plaintiff appeals against a common order dismissing an application to restore a suit for money dismissed for default and an application to condone 191 days in filing that application for restoration. It sued the respondents for a decree for recovery of Rs.72,23,043.96 with future interest. That happened to be dismissed for default. The application for restoration was filed on ground that on the date when the suit stood posted in the special list, the plaintiff's counsel had applied seeking that it be adjourned since the authorised agent FAO.242/09 2 of the plaintiff company could not be available in Kochi to tender evidence. The fact that such an application was filed is not in dispute. The dismissal of the suit was essentially on account of non-appearance of the witness to tender evidence on behalf of the plaintiff. The application to condone delay was supported by affidavit attributing the delay to the time taken for getting printed copies of the judgment dismissing the suit for default. Having regard to the plaint claim of TISCO and other relevant aspects, including the contention in the plaint, we deem it appropriate to restore the suit. We are satisfied that the plaintiff has shown sufficient cause to condone the delay and also for restoration of the suit, however, on terms. In the result, the impugned order is set aside and I.A.Nos.3789/07 and 3790/07 in O.S.71/02 of the Sub Court, Ernakulam are allowed restoring O.S.71/02 to file on condition that an amount of Rs.7,000/- is paid as costs, payable to the FAO.242/09 3 counsel appearing for the respondents herein, within a period of four weeks from now. The FAO is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.22/05. Certified that appellant has paid Rs.7,000/- as cost to the counsel for the respondent in compliance of the direction contained in the judgment dated 20.05.2010 in F.A.O.242/2009 and order dated 01.07.2010 in I.A.2232/2010 in F.A.O.242/2009 vide memo c.f 3670/2010 dated 24.0.2010. Sd/- Registrar (Judicial)