Kerala High Court
N.M. Shenoy vs Sherin Kareem on 2 August, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
Friday, the 2nd day of August 2024 / 11th Sravana, 1946
CM.APPL.NO.1/2024 IN RFA NO. 73 OF 2024
OS 38/2016 OF SUB COURT, SULTHANBATHERY
APPLICANTS/APPELLANTS:
1. N.M. SHENOY, AGED 48 YEARS, S/O. MANNATHKANDY MANTHOTTATHIL AJAN,
CHEVAYOOR VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673017
2. S. BINOY, AGED 55 YEARS, S/O. A SREEDHARAN, MATTAPILLIL HOUSE,
CHERAI, PALLIPURAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT -
682312
RESPONDENTS/RESPONDENTS:
1. SHERIN KAREEM, W/O. LATE ABDUL KAREEM, A 52, VRINDAVAN HOUSING
COLONY, CHEVAYOOR P.O., KOZHIKODE - 673017
2. NISHI KAREEM, D/O. LATE ABDUL KAREEM, A 52, VRINDAVAN HOUSING
COLONY, CHEVAYOOR P.O., KOZHIKODE - 673017
3. MUHAMMED ABDUL SALEEM, S/O. ARACKAL ABOOBACKER, 33/5218, FATHIMA
HOUSE, GOLF LINK ROAD, CHEVARAMBALAM P.O., CHEVAYOOR, KOZHIKODE -
673017
4. A MUHAMMED, S/O. ABOOABCKER, A 48, VRINDAVAN HOUSING
COLONY,CHEVAYOOR P.O., KOZHIKODE - 673017
5. A.M. ABDUL JABBAR, S/O. ABOOBACKER, C4- VRINDAVAN HOUSING COLONY,
CHEVAYOOR P.O., KOZHIKODE - 673017
6. AMINAKUTTY, W/O. A.P. BAVA, ZEENATH MANZIL, KARUVANTHURUTH P.O.,
FEROKE, KOZHIKODE - 673631
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to pass an order to
condone the delay of 1650 days in filing the accompanying Regular First
Appeal,so as to secure the ends of justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of M/S.C.P.PEETHAMBARAN, RAMSEENA UDAYAKUMAR, NEERAJA VENUGOPAL, ARJUN J
DAS, Advocates for the petitioners and of SRI.BIJU ABRAHAM,
SRI.B.G.BHASKAR,Advocates for R1, SRI.CHACKO C.A.for R3(BY ORDER) AND
M/S.CHACKO C.A.,C.M CHARISMA Advocates for R3 and R5, the court passed
the following:
SATHISH NINAN & JOHNSON JOHN, JJ.
= = = = = = = = = = = = = = = = = =
C.M.Appl.No.1 of 2024
in
R.F.A. No.73 of 2024
= = = = = = = = = = = = = = = = = =
Dated this the 2nd day of August, 2024
O R D E R
Sathish Ninan, J.
The delay of 1650 days in filing the appeal is sought
to be condoned.
2. The suit was one for specific performance of an
agreement for sale. The plaint was rejected for non-payment
of the balance court fee, after dismissing the application
filed seeking an enlargement of time for payment of the
balance court fee on the second occasion.
3. In the affidavit filed in support of the application
the reason stated for the delay is that, mediation talks
were going on between the parties and that, every endeavor
was being made to have the dispute settled amicably.
4. The respondents opposed the application,
contending that the number of days of delay stated by the
appellants is not correct and that the delay is more than
2300 days. The reason stated for the delay is also not
genuine, it is contended.
5. We have heard Shri.C.P. Peethambaran and Shri.B.G.
Bhaskar on behalf of the respective parties.
6. With regard to the extent of delay involved,
though the application states the extent of delay as 1650
days, it is seen that the delay is more than 2300 days. The
plaint was rejected for non-payment of the balance court fee
on 05.07.2017. The certified copy of the judgment was
applied for only on 14.12.2022. There has occurred a delay
of approximately five years and five months. The stamp
papers were called for on 17.12.2022 and the same were
produced on 19.12.2022. Copy was ready on 19.12.2022. The
date notified for appearance to receive the copy was
26.12.2022. The copy was taken delivery of on 20.12.2022.
However, the appeal is filed only on 27.03.2024. Therefore,
there is a delay of approximately one year and three months
after obtaining delivery of the judgment. After excluding
the period of 90 days available to file appeal, evidently,
the delay is approximately six years and five months.
Therefore, the delay is approximately more than 2300 days
and not 1650 days as stated by the appellants.
7. Now coming to the explanation offered for the
delay, according to the appellants they were trying for
amicable settlement of the disputes. To substantiate the
same it is claimed that pursuant to the mediation,
respondents 3 to 5 who are defendants 3 to 5, had executed
Assignment Deed No.858/2018 conveying their rights over the
property in favour of the plaintiffs-appellants. Though
respondents 1 and 2 - defendants 1 and 2 had also agreed to
assign their shares, but for dragging the issue, they failed
to execute the conveyance. The above resulted in the delay,
it is stated.
8. While it is borne out by the records that
respondents 3 to 6 - defendants 3 to 6 had executed an
assignment deed in respect of their share of the property in
favour of the plaintiffs, it is seen that the said document
was executed on 14.06.2018. Respondents 1 and 2 - defendants
1 and 2 herein had filed a suit for partition as O.S.No.19
of 2018 before the Sub Court, Sulthan Bathery, seeking
partition of the property, the plaintiffs having acquired
the shares of respondents 3 to 6 herein. Therefore, even at
that time, the plaintiffs were aware that respondents 1 and
2 herein were not amenable for a settlement. In the suit for
partition, a preliminary decree was passed on 19.03.2019.
The plaintiffs herein ought to have realised at least then
that respondents 1 and 2 herein are not in favour of a
settlement. The suit, O.S.No.19 of 2018, proceeded further,
and a final decree was passed on 30.09.2023. It is to be
noticed that, in the meanwhile, the plaintiffs had obtained
the certified copy of the judgment. Even though the final
decree was passed in O.S.No.19 of 2018 on 30.09.2023, still
the plaintiffs did not choose to file the present appeal.
Seeking execution of the decree for partition, respondents 1
and 2 filed an execution petition as E.P.No.26 of 2024. It
is thereafter, when the EP was proceeded with for delivery,
that the present appeal was filed. It cannot be conceived
that an ordinarily prudent person would let all such
proceedings happen and sit idle on the belief that the issue
in the present suit would be settled amicably.
9. The explanation offered by the appellants can only
be viewed as lacking in bonafides. At any rate, there is no
proper explanation for the inordinate delay of more than
2300 days caused in filing the present appeal. In the suit,
what the plaintiffs seek for is specific performance of an
agreement of the year 2005.
We are not satisfied with the explanation offered for
the delay. The delay petition fails and is accordingly
dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
yd
02-08-2024 /True Copy/ Assistant Registrar
