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2018 DIGILAW 37 (GAU)

Megha Assam (P. ) Ltd. v. Adabari Wine Shop

2018-01-08

PRASANTA KUMAR DEKA

body2018
JUDGMENT : Heard Mr. J.C. Gaur, learned counsel appearing for the petitioner. Also heard Mr. R. Barua, learned counsel appearing for the respondents. 1. This is an application under section 5 of the Limitation Act, 1963 for condonation of delay of 395 days in preferring the connected Second Appeal against the judgment and decree dated 29.9.2014 passed by learned Addl. District Judge No. 4(FTC), Kamrup (M) at Guwahati in Money Appeal No. 3/2012. The petitioner filed a suit in the court of learned Civil Judge No. 2 Kamrup (M), Guwahati which was registered as Money Suit No. 192/2005 as plaintiff. In the said suit the present respondents contested by filing their written statement which was finally dismissed vide judgment and decree dated 27.9.2010. Thereafter Money appeal No. 3/2012 was preferred by the present petitioner in the court of learned Addl. District Judge, No. 4, FTC Kamup (M), Guwahati which was dismissed on 29.9.2014. The decree of dismissal passed in Money Appeal No. 3/2012 was challenged by filing a revision petition numbered as CRP No. 530/2015 before this court. In the process of filing the said petition there was delay. The said application was filed under article 227 of the Constitution of India thereby showing it to be an inter-locutory order. However, vide order dated 22.1.2016 the said revision application was dismissed by the High Court with an observation that dismissal of said revision application shall not be a bar for the petitioner to prefer appropriate proceeding, if so advised. Subsequent thereto on 26.2.2016 the connected second appeal was preferred along with this application for condonation of delay of 395 days in preferring the said second appeal against the judgment and decree passed Money Appeal No. 3/2012. The cause of delay of 395 days, as explained by the petitioner in this application is reproduced herein below: “6. Subsequent thereto on 26.2.2016 the connected second appeal was preferred along with this application for condonation of delay of 395 days in preferring the said second appeal against the judgment and decree passed Money Appeal No. 3/2012. The cause of delay of 395 days, as explained by the petitioner in this application is reproduced herein below: “6. That the petitioner begs to state that the learned lower appellate court had dismissed the First Appeal No. 3 of 2012 by judgment and order dated 29.10.2014 and the petitioner applied for certified copy thereof on 25.11.2014 which had been issued to the appellant on 13.3.2015 and as the official of appellant-Sri Manoj Roy who had been looking after the case since the very beginning and who had been duly authorised to take all the steps in the case and who had been contacting the advocates of appellant, had not been attending the office of appellant from 10.3.2015 to 31.10.2015 due to medical treatment of his old mother, the appellant was not aware of the said judgment and only on the resuming his duty, the said Manoj Roy contacted the advocates of appellant to inquire about the case and on being informed of the dismissal, during the second week of November, 2015 he had instructed the advocate of appellant to challenge the said order of dismissal and accordingly, the advocate of appellant prepared and filed the CRP No. 530 of 2015 which had been dismissed by this hon'ble Court by order dated 22.1.2016 and in the meantime, the said official of appellant-Sri Manoj Roy had again gone on leave for making arrangements for marriage of his family member and resumed his duty only on 22.2.2016 and on being informed, he had instructed his advocate to file the second appeal and accordingly, a fresh certified copy of order dated 29.10.2014 had applied on 23.2.2016 and the appeal is being filed on 26.2.2016 and, thus, there is a delay of 395 days in filing the second appeal after exclusion of the time of 90 days prescribed for filing appeal before this hon'ble Court from the date of judgment, i.e., 29.10.2014.” Citing the aforesaid reasons as reproduced hereinabove the petitioner submits that the delay in filing the second appeal was occasioned due to circumstances as explained above which, is beyond its control and as such the delay of 395 days be condoned. 2. 2. The respondent entered appearance and filed his objection supported by affidavit. The statements made in the delay condonation petition and the reasons for the delay as reproduced herein above are controverted by the present respondents which is reproduced herein below: “That as regards to the statements made in paragraph 6 of the IA the deponent denied that the petitioner-appellant Sri Manoj Roy who had been looking after the case since the very beginning and who had been contracting the advocate of appellant had not been attending the office of appellant from 10.3.2015 to 31.10.2015 due to medical treatment of his old mother. The petitioner has not submitted any documents in support of the said statement. Further, the deponent begs to state that the statement of the petitioner is absolutely false. The petitioner wants to mislead the hon'ble Court by giving false statement that he was on leave from his duties for treatment of his aged mother between the periods from 10.3.2015 to 30.10.2015. In fact, the petitioner was on his duty between the periods from 10.3.2015 to 30.10.2015. In this regards the deponent begs to state on 22.9.2015 the petitioner-appellant, Monoj Roy has filed a complaint case before the learned Chief Judicial Magistrate, Kamrup (Metro) at Guwahati under section 138 of NI Act 1881 read with section 417/420 of IPC, representing Megha Assam (P.) Ltd. against the Relax Bar and one Sri Sukumoni Roy. Accordingly the said complaint was registered as Complaint case No. 2306/2015 and same was transferred to the learned Court of N.J. Choudhury, Judicial Magistrate 1st Class, Kamrup (M), Guwahati for disposal. The deponent further begs to state that on 22.9.2015 the petitioner also swearing an affidavit before the Notary Public, Kamrup at Guwahati as Evidence-cum-deposition in the form of affidavit under section 200, Cr.PC and same has been submitted in the Complaint Case No. 2306/2015. From the Complaint Case No. 2306/15 as well as the Evidence-cum-deposition in the form of affidavit under section 200, Cr.PC it is crystal clear that between the periods from 10.3.2015 to 30.10.2015 the petitioner was on his duties, but the petitioner-appellant state lies before the hon'ble Court that he had not been attending the office of appellant from 10.3.2015 to 31.10.2015 due to medical treatment of his old mother. The statement about his absence from his official duties is totally false. The statement about his absence from his official duties is totally false. The petitioner want to mislead the hon'ble Court by making a fake story and, therefore, the instant petition is liable to be dismissed with cost.” Along with the said objection the present respondent also submitted the copy of complaint petition in Complaint Case No. 2306C/2015 in the court of learned CJM, Kamrup (Metro), Guwahati. Along with the said complaint petition as required under section 200, Cr.PC an evidence-cum-deposition was also annexed purportedly sworn by one Monoj Roy, the employee mentioned in para 6 of the petition for condonation of delay. The said affidavit was sworn on 22.9.2015. 3. Mr. Gour, learned counsel appearing for the petitioner submits that owing to illness of the mother of the employee Monoj Roy, the connected second appeal could not be filed on time. The grounds mentioned in the said petition as reproduced hereinabove is not supported by any documentary piece of evidence to show that the mother of the employee Monoj Roy was suffering from any illness. However, Mr. Gour submits that if required, the same be brought on record by filing additional affidavit. Accordingly Mr. Gaur submits that grounds mentioned in this application are bona fide and sufficient enough to condone the delay of 395 days in preferring the connected second appeal. 4. Raising objection against the submission of the learned counsel appearing for the petitioner, Mr. Barua pointed out to the averments made in the objection supported by documents. It is submitted that the application for condonation of delay and the grounds shown therein are totally unbelievable inasmuch the same employee Manoj Roy had filed the said complaint petition under N.I. Act wherein he had sworn an affidavit in support of the contention made in the said complaint petition. The said contents of the affidavit were true to the knowledge of Manoj Roy as apparent from the said affidavit and the submission made in the affidavit shows that he was very much working under the present petitioner during the period of absence shown as ground for condonation of delay as reproduced hereinabove. As such Mr. Barua submits that the petition for condonation of delay cannot be allowed as there are suppression of material facts. 5. Considered the submissions of the learned counsel. As such Mr. Barua submits that the petition for condonation of delay cannot be allowed as there are suppression of material facts. 5. Considered the submissions of the learned counsel. Under section 5 of the Limitation Act, 1963 it is the court to draw the satisfaction with regard to sufficiency and the bona fide of the grounds mentioned in the application for condonation of delay. From the reading of the application for condonation of delay, nowhere the petitioner had mentioned the fact with regard to filing of the complaint case during the period of alleged absence of the said employee Monoj Roy from his job under the petitioner in the said application. Nor there is denial of the said fact for which the act of filing the complaint case by Manoj Roy is accepted to be true. The said filing was on 22.9.2015 and this application for condonation of delay was filed on 26.2.2016 but even then the said fact did not find place in this application. Mr. Gaur submits that same was inadvertently left out. This is purely an intentional act and suppression of material fact which no court can give indulgence to a party to urge as a ground of inadvertency in not bringing the said fact before the court. Suppression of material fact in a court has its reaction which goes against the petitioner to his adverse effect. This court considering the objection of the respondent have come to the conclusion that the grounds mentioned in the application cannot be considered to be sufficient inasmuch ingredients of negligence coupled with suppression of material facts are very much apparent on the grounds forwarded for consideration of this court and as such this application is dismissed with a cost of Rs. 5,000 to be paid by the petitioner to the Registry for onward transmission to the Legal Aid Cell of this court. 6. Registry to take follow up action and in the event of non-deposit of the cost the same would be realised as decretal amount by filing execution proceeding by the said Legal Aid Cell, in the Court of learned Civil Judge (Senior Division) No. 2 at Guwahati. This application is disposed of accordingly.