IMPORTANT POINT
The court emphasized that a satisfactory explanation for delay in filing an appeal is essential, particularly when substantial time has elapsed since the judgment.

JUDGMENT :

C.M. Appln. No.1/2024

1. This is an Application to condone the delay of 592 days in filing the Regular Second Appeal. The Applicant/1^st defendant in the suit is a Bank. The Application is opposed by the 1^st respondent/plaintiff by filing the Counter Affidavit. The Applicant filed a Reply Affidavit to the Counter Affidavit and an Additional Affidavit. The Applicant filed I.A No.4/2024 and I.A No. 1/2025 to receive additional documents and the same are allowed.

2. I heard the learned counsel for the Applicant Sri.Muralikrishnan.C and the learned Counsel for the 1^st respondent Sri.Praveen K Joy.

3. The learned counsel for the applicant contended that the delay is properly explained by the applicant in the Additional Affidavit. The photostat copy of the certified copy of the judgment obtained on 31.01.2022 as per CA No.236/2022 was produced along with I.A. No.1/2024. It would show that the applicant had filed a copy application within time and had obtained a certified copy. The present appeal was filed using the certified copy obtained on 28.10.2023 as per C.A. No.3481/2023. It would indicate that the original certified copy obtained by the applicant was misplaced as contended by the applicant. The applicant is entitled to get exclusion of the major period on account of Covid pandemic and pendency of the matter before mediation. At any rate, the delay is to be condoned on payment of cost since the appellant is deeply aggrieved by the judgment and decree passed by the Trial Court, which is confirmed by the First Appellate Court. The learned counsel invited my attention to the merits of the matter also in this regard.

4. On the other hand, the learned counsel for the 1^st respondent contended that the delay is not properly explained by the applicant. The date on which the applicant came to know about the misplacement of the original certified copy is not disclosed in the Affidavit. The Execution Petition was filed on 13/03/2023 and the applicant would have received notice in the Execution Petition in March 2023 itself and thereafter the second application for certified copy is seen to have been filed only on 28/10/2023. If the applicant wanted to file the appeal immediately, the applicant would have applied for the certified copy at least immediately on receipt of the notice in the Execution Petition. With regard to the Covid period also, the period from 15/03/2020 to 28/02/2022 is liable to be excluded. But, the original certified copy was delivered on 31/01/2022. That means only 28 days is liable to be excluded from the delay of 592 days. Since, the 90 days limitation period is already excluded and the delay is calculated, the applicant is not entitled to exclude another 90 days in this regard.

5. I have considered the rival contentions.

6. The appellant/bank was the 1^st defendant in the suit. The other defendants were the cellular operators and their officers. The plaintiff filed the suit for Rs.12,21,005/- with interest from the defendants on the allegation that the plaintiff suffered a loss on account of online fraud due to the gross laches, negligence, and misconduct of the defendants.

7. The suit was filed in the year 2016 and the same was decreed on 20.08.2019. The suit was decreed in part directing the 1^st defendant to pay Rs.4,79,543/- to the plaintiff with interest @ 9% per annum on Rs.4,48,582/- from the date of the decree till realisation, and directing the defendants 2 to 5 to pay Rs.2,39,771/- to the plaintiffs with interest @ 9% per annum on Rs.2,24,291/- from the date of the decree till realisation with proportionate cost. The plaintiff filed A.S No. 141/2019, the 1^st defendant filed A.S No. 13/2020, and the defendants 4 and 5 filed A.S No. 95/2020 before the First Appellate Court, and all the appeals were dismissed by a common judgment dated 23.12.2021. The 1^st defendant filed the present Regular Second Appeal on 23.01.2024 with the above Application to condone the delay.

8. In the original affidavit in support of