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2006 DIGILAW 1109 (DEL)

FINOLUX AUTO PVT. LTD. v. FINOLEX CABLES LTD.

2006-07-05

MUKUNDAKAM SHARMA, RIMA KOHLI

body2006
JUDGMENT Dr. Mukundakam Sharma, J.-Being aggrieved by the judgment and order dated 9th August. 2004 passed by the learned Single Judge of this Court in IA No. 6510/2003 in CS (OS) No. 2347/2000, rejecting the application of the appellant herein filed under Order 9 Rule 7, CPC, the present appeal is preferred in this Court. The appeal is barred by limitation and there is delay of about 224 days in filing the present appeal. Consequently, an application under Section 5 of the Limitation Act is also filed by the appellant praying for condonation of delay in filing the appeal. Along with the said application filed under Section 5, an affidavit of the previous Counsel who represented the appellant is also annexed. The aforesaid application filed under Section 5 of the Limitation Act is strongly opposed by the respondent who had filed reply thereto refuting the statements made in the application. 2. We have heard the learned Counsel for the parties on the aforesaid application under Section 5 of the Limitation Act. The impugned order was passed by the learned Single Judge on 9th August, 2004. It is stated that the certified copy was applied for immediately by the appellant and the said certified copy was made available to the appellant on 23rd September, 2004. Thereafter, the appeal was required to be filed in this Court within 30 days from the date of receipt of the aforesaid certified copy by the appellant. It is stated in the application that the Counsel for the appellant also received instructions from the appellant to file the appeal against the order dated 9th August, 2004 and on receipt of the aforesaid instructions, the Counsel drafted the appeal and sent the same to the appellant for signatures, which was received back by the Counsel on 23 Id September, 2004 and that immediately thereafter, the same was filed in this Court on 24th September, 2004. Thus, there was a delay of four days in preferring the said appeal. The appellant has also stated so in paragraphs 3 and 4 of the application. 3. A perusal of the above said statements made in the said application reflects that the same are quite vague as no date has been specified as to when the Counsel sent the Memorandum of Appeal drafted by him to his client, the appellant herein, for signatures. 3. A perusal of the above said statements made in the said application reflects that the same are quite vague as no date has been specified as to when the Counsel sent the Memorandum of Appeal drafted by him to his client, the appellant herein, for signatures. No material particulars whatsoever in this regard have been furnished to this Court. The application is also vague in respect to the statements made with regard to the delay even thereafter, as it is apparent that there were some objections in the aforesaid appeal raised by the Registry for rectification, for which purpose, the Memorandum of Appeal was taken back by the Counsel for the appellant for refiling. 4. On perusal of the records, we find that the aforesaid appeal which was returned under objections, was not refiled and in fact a fresh appeal came to be filed later on. No proper statement is forthcoming in the present appeal as to why a fresh appeal came to be filed and why the earlier appeal which was taken back could not have been refiled by the appellant. Negligence and inaction on the part of both the Counsel and the appellant is writ large on the face of the record. 5. Although, the statements made in the application are contained in about 16 paragraphs. but the same are extremely vague and ambiguous. The explanation for the delay of 224 days appears to be too insufficient, unsatisfactory and unreasonable for condoning the inordinate delay. If the Memorandum of Appeal was returned back to the appellant through his Counsel, the same was required to be refiled with utmost haste which was not done and, in fact, a fresh appeal came to be filed in this Court after a delay of about 224 days. Even the copies of the earlier Memorandum of Appeal are not placed on record to prove and establish that in fact a Memorandum of Appeal was prepared and filed which was returned. In that event we could have ascertained the nature of objections raised by the Registry. There is no explanation given about the status of the office copies of Memorandum of Appeal retained by Counsel for the appellant. The application clearly lacks any proper and satisfactory explanation of delay in filing the present appeal. 6. In that event we could have ascertained the nature of objections raised by the Registry. There is no explanation given about the status of the office copies of Memorandum of Appeal retained by Counsel for the appellant. The application clearly lacks any proper and satisfactory explanation of delay in filing the present appeal. 6. In this regard, we may refer to a decision of the Supreme Court in P.K. Ramachandran v. State of Kerala, IV (1997) CLT 95 (SC)= AIR 1998 SC 2276 . In the said decision, the Supreme Court has held that unless and until a reasonable or satisfactory explanation is given the inordinate delay should not be condoned. In para 6 of the judgments, the Supreme Court has laid down in the following manner: "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs." 7. In our considered opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case. There is no proper explanation of the delay, much less a reasonable or satisfactory explanation. We reject the application of the appellant. Consequently, the appeal filed by the appellant also stands dismissed. CM 7300/2005 8. The application stands dismissed as having become infructuous. Application dismissed.