IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WA.No. 1133 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.35927/2009 .................... APPELLANT(S): -------------- SHIBU C.S., S/O/SREEDHARAN, AGED 37 YEARS, PROPRIETOR, M/S.GANAPATHY SILKS & SAREES, OPP.V.V.H.S.KODMTHURUTH, KUTHIATHODU, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.M.M.ALIAS RESPONDENT(S): --------------- 1. THE BRANCH MANAGER, FEDERAL BANK LIMITED AROOR BRANCH, ST.AUGUSTINES BUILDING,ALAPPUZHA DISTRICT. 2. BHASURANGAN M.G.,S/O.GOPALAN, AGED 66 CHITHRALAYAM HOUSE,KUTHIATHODU,CHERTHALA, ALAPPUZHA DISTRICT. 3. MANOJKUMAR B, S/OBHASURANGAN M.G.AGED 38 YEARS, THITRALAYAM HOUSE KUTHIATHODU, CHERTHALA, ALAPPUZHA DISTRICT. 4. PREETHY CHAND,W/O.MANOJKUMAR B,AGED 33 CHIHTRALAYAM HOUSE, KUTHIATHODU, CHERTHALA, ALAPPUZHA DISTRICT. ADV. SRI.MOHAN JACOB GEORGE FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ORDERS ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1133 of 2010 and C.M.Appln.No.555 of 2010 ----------------------------------------- Dated this the 14th day of July, 2010 JUDGMENT J.Chelameswar,C. J. C.M.Appln.No.555 of 2010: This is an application filed praying that the delay of 97 days in preferring the instant appeal against the judgment in W.P(C)No.35927 of 2009 dated 5-2-2010 be condoned. The appellant is a tenant of the second respondent herein, carrying on textile business in the premises owned by the second respondent. It appears that the second respondent borrowed certain money from the first respondent against the security of the building in which the appellant herein is a tenant. As the second respondent did not make repayment of the borrowed amounts as agreed upon the first respondent bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 2. It is in the above mentioned background W.P(C)No.35927 of 2009 is filed by the appellant herein with prayers as follows:- (a) To issue a writ of mandamus or any other appropriate writ, order or direction commanding W.A.No.1133 of 2010 and C.M.Appln.No.555 of 2010 -:2:- and compelling the 1st respondent to grant 6 months time for vacating from the building bearing Nos.IV/61 and IV/63 A of Kodamthuruth Panchayath for shifting the shop to another building after interior work and obtaining licences from the various authorities or direct the 1st respondent not to take any steps to evict the petitioner from the building in which the 1st respondent is taking steps for evicting the petitioner. (b) To issue a writ of mandamus or any other appropriate writ order or direction commanding and compelling the 1st respondent to consider the request of the petitioner to grant 6 months time for vacating from the building bearing Nos.IV/61 and IV/63A of Kodamthuruth Panchayath for shifting the shop to another building after interior work and obtaining licences from the various authorities. (c) To issue a writ or any other appropriate writ, order or direction of certiorari to quash Ext.P11 notice. By the judgment which is sought to be appealed against a learned Judge of this Court recorded as follows:- “2. ... It is also stated that the petitioner is ready and willing to effect vacant surrender of the W.A.No.1133 of 2010 and C.M.Appln.No.555 of 2010 -:3:- premises within 'six months' after taking necessary steps to shift the business to some other site. 3. The learned counsel appearing for the 1st respondent Bank submits, on instructions, that taking note of the limited extent of relief prayed for and considering the bonafides, the 1st respondent Bank, as a gesture of Goodwill is ready to accept the said request and that the Writ Petition could be allowed to the said extent. 4. Accordingly, the Writ Petition is allowed and the petitioner is permitted to continue in the premises for a period of 'six' months, on condition that vacant surrender shall be effected on or before the 30th of June, 2010. It is also made clear that if there is any failure on the part of the petitioner in honouring the commitment and undertaking given as above, the 1st respondent will be at liberty to pursue appropriate steps to take physical possession of the building under Section 14 of SARFAESI Act.” It can be seen from the above facts that the order which is proposed to be impugned in the writ appeal is an order passed on consent of the parties. In the circumstances, in our opinion, the appeal itself would be incompetent, whether it is filed within the period of limitation or beyond the period of limitation. Therefore, we do not see any ground to consider the application for condoning the delay in preferring the W.A.No.1133 of 2010 and C.M.Appln.No.555 of 2010 -:4:- appeal. The application is accordingly dismissed. Consequentially the writ appeal is also dismissed. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1133 of 2010 and C.M.Appln.No.555 of 2010 ---------------------------- JUDGMENT 14th July, 2010