IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 MSA.No. 3 of 2011() ------------------- AS.210/2010 of DISTRICT COURT, KOTTAYAM IP.15/2008 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT: ------------ ROY THARIAN S/O.LATE THARIAN THOMAS, AGED 55 YEARS, KANDAMCHIRA, MEENADAM P.O.,KOTTAYAM TALUK BY ADV. SRI.V.N.SASIDHARAN RESPONDENT(S): --------------- 1. RAJAN NAIR, S/O.NARAYANAN NAIR, AGED 55YEARS, THENGUMTHARAYIL HOUSE, PANAKKAZHIPPUKARA,MUTTAMBALAM VILLAGE, KOTTAYAM TALUK 2. JULIE RAJAN, W/O.RAJAN NAIR, AGED 47 YEARS, THENGUMTHARAYIL HOUSE, PANAKKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK 3. THE KOTTAYAM DISTRICT CO-OP.BANK LTD, REP.BY ITS SECRETARY, KOTTAYAM THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... MSA No.3 of 2011 ............................................ DATED THIS THE 17th DAY OF AUGUST, 2011 JUDGMENT The petitioner in Insolvency Petition No.15 of 2008 on the file of Sub Court, Kottayam is the appellant. Respondents are the respondents. The petition was filed before the Insolvency Court declaring respondents 1 and 2 as insolvent. Third respondent is the creditor of respondents 1 and 2. Learned Sub Judge, as per order dated 16.10.2009 allowed the insolvency petition in part adjudicating respondents 1 and 2 as insolvents making it clear that it has come out in evidence that the plaint schedule property has already been sold in public auction under Securitization Act and no Receiver was appointed for taking the property and petitioner is at liberty to move the other assets of respondents 1 and 2, if any, under the Insolvency Act. Appellant filed A.S.210 of 2009 after a delay of 242 days along with I.A.1293 of 2010, an application filed under Section 5 of the Limitation Act to condone the delay. By order dated 28.1.2011, learned District Judge dismissed I.A.1293 of 2010 and consequently dismissed the first MSA 3/2011 2 appeal as barred by time. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that when the appellant had produced a Medical Certificate to prove his illness and it is established that as he was laid up due to Rheumatic Arthritis he could not file an appeal in time, learned District Judge should have taken a lenient view and should have allowed the application and decided the first appeal on merits. It is therefore argued that the order dismissing the application filed under Section 5 of the Limitation Act is illegal. 3. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. As rightly found by the learned District Judge, even though insolvency petition was disposed on 16.10.2009, copy application for the certified copy of the order was applied for only on 22.6.2010. Even if appellant was suffering from Rheumatic Arthritis, as claimed by him, that will not be a valid reason for not taking steps to take the certified copy of the order as the presence of the appellant is not necessary for that purpose. Learned District Judge also found that though a Medical Certificate is produced, MSA 3/2011 3 the Doctor was not examined and it is clear that the delay was not occasioned due to illness. In the light of that factual finding, I do not find any substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk