IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 RSA.No. 76 of 2006() ------------------------------ AS.124/1998 of PRL.SUB COURT, KOZHIKODE OS.896/1992 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT/APPELLANT/20TH DEFENDANT: ---------------------------------------------------------------- VALIYA KUNIYIL MOIDU HAJI, S/O.ABDUL HAJI, ROSE MAHAL, THRIKOTTOOR AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVOCATES MR..K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENTS/RESPONDENTS/PLAINTIFFS, DEFENDANTS 1 TO 6, 8 & 9, 11 TO 19 & SUPPL. DEFENDANTS:- ------------------------------------------------------------------------------------------------------- 1. VIRUTHISSERI VAYALIL SURESH, S/O.MOOTTOLYKANDY VASU @ VASUDEVAN, EDAKKAD AMSOM PUTHIYANGADI DESOM, KOZHIKODE TALUK. 2. -DO- SUNIL, - DO - 3. THYAGARAJAN, S/O. PATTARMADATHILTHAMASIKKUM MOOTOLYKANDY BALAKRISHNAN, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 4. SURENDRARAJAN, S/O. - DO - DO. 5. GOPINATHAN, S/O. - DO - DO. - DO - 6. SASIKUMAR, S/O. - DO - DO. - DO - 7. VINOD, S/O. - DO - DO. - DO - 8. SUDHAKUMARI, - DO - DO. - DO - 9. MOOTOLYKANDY JAYAPRAKASAN, S/O SREEDHARAN, YMCA CROSS ROAD, SREESHAI, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. RSA.No. 76 of 2006() -2- 10. JAYAVARDHANAN, S/O. - DO - DO. - DO - 11. VALAPPIL MOIDEENKOYA, MOOTTOLI AMSOM DESOM, KOZHIKODE TALUK. 12. THAZHA PARAMBATH MUSTHAFA, MAKKADA AMSOM DESOM, KOZHIKODE TALUK. 13. CHALIL PETTA KAITHAN JUBAIRIYA, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. 14. VASANTH SHYLAJA, KALATHINKUNNU AMSOM, KOZHIKODE TALUK. 15. CHENNATH RAMACHANDRAN, - DO - 16. THOPPIL PATHUMMABI, - DO - 17. NEDUNGADI BANK STAFF FEDERATION, - DO - 18. KODASSERY SETHUMADHAVAN, - DO - 19. MUKKASSERY BADARUDEEN HAJI, VELIMUKKU AMSOM DESOM, TIRUR TALUK. 20. PARAMANNIL GEETHA, W/O LATE KOMALAN, BAROCK ROAD, 105/1, “SANGEETHA”, CHENNAI, TAMIL NADU. 21. SAGAR, S/O. LATE KOMALAN, - DO - 22. SARIKA, D/O. - DO - - DO - 23. SAMEERA, D/O - DO - - DO - BY ADVOCATES MR.M.SANTHOSHKUMAR FOR R.19 MR.P.K.MOHAMED JAMEEL MR.V.N.RAMESAN NAMBISAN FOR R1 & R2 MR.C.P.MOHAMMED NIAS FOR R3 TO R7 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J - - - - - - - - - - - - - - - - - - - - - - - C.M.A 43 of 2006 & R.S.A. No. 76 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of March, 2009 J U D G M E N T C.M.A 43 of 2006 This is an application filed by the appellant seeking for condonation of delay of 741 days in filing the Regular Second Appeal. The appellant is the 20th defendant in the suit and Managing Partner of Haji V.K. Moidu and Company. The averments in the affidavit filed by the appellant/20th defendant are that he is the Managing Partner of Haji V.K. Moidu and Company and the property was purchased on behalf of the firm, that the sister concern of the firm is a company by name Kerala Roadways Limited; that the property is being used as office and godown of the Kerala Roadways Limited, Calicut branch and the affairs of the company are being looked after by the staff of the Calicut Branch; that immediately after the appeal was disposed of, the person who was put in charge of the case, was requested to take steps for filing the appeal and C.M.A 43 of 2006 in R.S.A. No. 76 of 2006 -2- though the appeal was disposed of by the lower appellate court on 21.10.2003 and the person who was looking after the case was asked to apply for certified copy and to consult the advocate for filing Second Appeal; he left service of the company without properly attending the matter entrusted with him and the fact that he did not take any step for filing the appeal was not noticed and only when the Commissioner came to the property and made enquiry, it was realised that the Second Appeal is not filed and a delay of 741 days is caused in filing the appeal. It is also sworn that in the meanwhile he got laid up after a bye-pass surgery and could not personally attend the affairs for a long time. There is no whisper in the affidavit as to who was the person who was entrusted to be in charge of the case and against whom the allegations are made that he did not take necessary steps to prefer the appeal and left the service without properly attending the matter entrusted with him. There is also no mention as to when the deponent underwent bye-pass surgery and from which date to which date was the deponent unable C.M.A 43 of 2006 in R.S.A. No. 76 of 2006 -3- to personally attend the affairs of the company. Condoning delay of as much as 741 days in filing the appeal is vehemently opposed by the respondents. In the nature of the averments made in the affidavit as stated above, I do not find any just and sufficient cause to condone the delay. In the result refusing to condone the delay of as much as 741 days in filing RSA, I dismiss this CM application. R.S.A. No. 76 of 2006 C.M.Application No. 43 of 2006 seeking for condonation of delay of as much as 741 days in filing the RSA is dismissed today. Consequently, this R.S.A is hopelessly barred by limitation. In the result, I dismiss this RSA. K.P.BALACHANDRAN JUDGE rhs