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 7TH APRIL 2011 / 17TH CHAITHRA 1933 FAO.No. 65 of 2011 --------------------------- [OS.NO.227/2007 OF PRINCIPAL SUB COURT,KOLLAM] .................... APPELLANT/PETITIONER/PLAINTIFF: ------------------------------------------------------ A.K.UTHAMAN, AGED 59 YEARS, SON OF LATE A.K.KOCHUVAVA, ARESERIL HOUSE, THUMPOLY, ALAPPUZHA-688 008. BY ADVS. SRI.H.B.SHENOY, SRI.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY, SRI.ABU MATHEW, SRI.SOBHAN GEORGE, SRI.V.SHYAM, SRI.R.SIVADASAN. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. KERALA FINANCIAL CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. 2. THE CHIEF MANAGER, KERALA FINANCIAL CORPORATION, A.G.C.COMPLEX, BEACH ROAD, KOLLAM-691 001. R1 & R2 BY ADV. SRI.A.A.ABUL HASSAN, S.C, K.F.C. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- F.A.O.NO.65 OF 2011 & C.M.APPLN.NO.416 OF 2011 ----------------------------------- Dated this the 7th day of April, 2011 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. Read orders dated 10.3.2011 and 5.4.2011. 2. This appeal is against an order by which the court below dismissed an application for restoration of a suit dismissed for default. 3. Having heard the learned counsel for the appellant at the stage of consideration of the delay petition, we thought it appropriate to look into the merits as well. We find that the plaint claim is one for specific performance of what the plaintiff calls as a 'contract'. The plea is that the Kerala Financial Corporation, which is governed by the provisions of the State Financial Corporations Act, 1951 had F.A.O.NO.65 OF 2011 2 auctioned out an item of property, but, however did not ultimately transfer that property in favour of the plaintiff. 4. The fact of the matter remains that there was a suit by a third party, which prevented the transaction being concluded and in the meanwhile, the debtor had obtained the benefit of OTS scheme and had paid off the KFC and has taken back the pledged documents. This has been recorded by us on 5.4.2011 on the basis of the submissions made by the learned counsel for the KFC. 5. With the aforesaid, we do not find any ground to condone delay of 115 days in filing this appeal since we are of the view that no useful purpose will be served by having the suit taken back to file. C.M.Appln.No.416/2011 is only to be dismissed. On the totality of the facts and circumstances, we also do not find any ground to interfere with the order rejecting the application for restoration of the suit. 6. With this, we are of the view that instead of having the suit treated as dismissed, we could consider this as a F.A.O.NO.65 OF 2011 3 case where no cause of action has been made out even at the initial stage, and therefore, the plaint itself ought have been rejected. Therefore, while refusing to interfere with the impugned orders and also to condone delay in instituting this appeal, in exercise of the authority under Article 227 of the Constitution of India and Order VII Rule 11 of the Code of Civil Procedure, we reject the plaint in O.S.No.227/2007 on the file of the Principal Sub Court, Kollam and order refund to the plaintiff, the entire court fee paid on the plaint. We also leave open the statutory remedies as may be available to the plaintiff, if any. Appeal is dismissed. The court below will pass consequential orders, including refund of court fee in terms of the aforesaid. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp-sha