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2023 DIGILAW 1205 (AP)

Apple Bio Tech v. Fedora Sea Foods Pvt Ltd

2023-08-17

D.V.S.S.SOMAYAJULU, DUPPALA VENKATA RAMANA

body2023
JUDGMENT D.V.S.S.SOMAYAJULU,J. - This interlocutory application is filed for condonation of delay of 385-547 days in filing the Civil Miscellaneous Appeal. In the affidavit annexed to the interlocutory application, at para 6, it is mentioned that there is a delay of 547 days, but in the last para i.e. para 7 of the affidavit, it is mentioned that there is a delay of 385 days. The deponent of the first affidavit has also filed an additional affidavit on 18/7/2023 setting out further details to explain the condonation of delay. 2. This application is very vehemently opposed by the respondents. They filed a very detailed counter affidavit and also an additional counter affidavit. 3. This Court has heard Sri V.S.R.Anjaneyulu, learned senior counsel appearing for the appellants/petitioners instructed by Sri V.V.L.N.Sarma and Sri O.Manohar Reddy, learned senior counsel for the respondents instructed by OMR Law Firm. 4. The sum and substance of the submission of the learned senior counsel for the petitioners is that the suit in question out of which the CMA arises can only be filed before the Commercial Court, Vijayawada. It is contended that the suit is filed for recovery of a sum of Rs.9,55,74,429.00 along with interest. Learned senior counsel therefore submits that in view of the constitution of the Commercial Court by virtue of G.O.Ms.No.78 dtd. 16/5/2019, which is functioning with effect from 4/3/2020, the suit is not at all maintainable before the District Judge, Nellore and the orders granted are all non est in the eye of law. He relies upon Musunuru Kasi Annapurnamma v. Musunuru Seshaiah, 1983 (1) APLJ 311 . and Mahadeo Prasad Singh and another v. Ram Lochan and others, (1980) 4 SCC 354 . to argue that since the Court at Nellore has no jurisdiction to entertain the suit at all, the orders passed have to be treated as null and void and therefore non est in the eye of law. It is also submitted that in the strict since there is clear lack of jurisdiction and as the order passed is non est in the eye of law, the condonation of delay and the words 'sufficient cause' should be liberally construed in order to advance substantial justice. He relies upon The State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749 . Collector, Land Acquisition, Anantnag and another v. Mst. He relies upon The State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749 . Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 . and State of Bihar and others v. Kameshwar Prasad Singh and another, AIR 2000 SC 2306 . in support of his contention. Relying upon the medical records that are filed, learned senior counsel submits that the petitioners have made out a case for condonation of delay. 5. In reply to this, Sri O.Manohar Reddy, learned senior counsel submits that for the purpose of condonation of delay, this Court cannot hold that the orders are non est or void in law. According to him, the only issue to be considered is whether sufficient cause is made out or not to condone the delay. Relying upon the documents filed, learned senior counsel submits that the respondents have not proved that there was sufficient cause for condonation of delay. He points out that the medical record filed is totally inadequate to condone the huge delay. It is his contention that there should be a declaration from a Court of competent jurisdiction to hold that the order is non est and not binding and the mere assertion of a party is not enough. He relies upon State of Punjab and others v. Gurdev Singh, (1991) 4 SCC 1 . and Sneh Gupta v. Devi Sarup and others, (2009) 6 SCC 194 . in support of his submission. He, therefore, contends that unless and until a Court. holds that the order is non est and non binding in an appropriate proceeding or an application, this Court while exercising jurisdiction to condone the delay cannot pronounce on the validity of the orders. 6. This Court after hearing both the learned counsel at length notices that a lot of arguments were advanced by the respective senior counsels on the various aspects of the matter including the transfer CMP, the manner in which the attachments were granted etc. etc. In the opinion of this Court, these are not very germane for deciding the question of delay as explained in I.A.No.1 of 2023. etc. In the opinion of this Court, these are not very germane for deciding the question of delay as explained in I.A.No.1 of 2023. Initially, an application is filed which is affirmed on 17/6/2023 and the only cause mentioned for the delay of 547/385 days is following: 'In para 6, 'due to lack of proper advice and mainly due to my health condition i.e. taking treatment for left eye and finally on the advise of doctors to undergo surgery, I could not take steps to file the above CMA in this Hon'ble Court. In that process, there is a delay of 547 days in filing the above CMA'. 7. An additional affidavit was also filed and it is affirmed by the very same deponent. In para 10, additional grounds are urged for the delay, namely, that the petitioner is a diabetic that he has lost almost 90% of the vision for the left eye and a major surgery was conducted on 12/12/2022 on his eye; that he has to undergo constant checkups and that he also underwent Angiogram test and stent was inserted for the heart problem in 2019. The counter affidavit strongly denies these allegations. It is mentioned that sufficient cause is not made out. The history of the suit, the contest of the various applications etc., are asserted. It is also argued that the petitioner has engaged a senior/experienced civil lawyer in the high Court and also in the lower Court and the statement that he has not received proper advice is denied. It is also pointed out that the petitioner personally appeared before the Court on more than one occasion. An additional counter affidavit was also filed setting out the petitioners appearances in the Court, the filing of the various proceedings etc. It is also asserted that on 7/3/2022, the petitioner filed CRP.No.515 of 2022 and appeared through the counsel in Tr.C.M.P.No.83 of 2022. Certain dates are also mentioned in para 5 of the additional counter affidavit in a tabular form and it is lastly urged that sufficient cause is not made out. 8. A large part of the argument of the learned senior counsel for the petitioner is relying on the fact of the constitution of the Commercial Court at Vijayawada and that only that Court will have jurisdiction and that all the interim orders etc., passed are non est in the eye of law. 9. 8. A large part of the argument of the learned senior counsel for the petitioner is relying on the fact of the constitution of the Commercial Court at Vijayawada and that only that Court will have jurisdiction and that all the interim orders etc., passed are non est in the eye of law. 9. This Court has its own reservation about this submission, but since the application that is being considered is one about the delay in filing the CMA, this Court is not expressing any opinion on the order being non est. Whether in that view of the language used in Sec. 15 of the Commercial Court Act, the orders passed would be non est or not cannot be decided in the course of these proceedings. This is an aspect that has to be examined in an appropriate proceeding. 10. As far as the question of delay is concerned, as pointed out in the affidavit itself, it is not very clear about the exact delay. Both the delay of 385 days and 547 days are mentioned in the first affidavit filed. In the second affidavit filed, it is said that the actual delay is 385, but not 547 days. In the counter affidavit filed both of these denied and it is stated that the delay is 469 days. Apart from this, this Court notices that the documents filed by the deponent of the delay condonation affidavit do not by themselves prove that the petitioner was incapacitated for this entire period. As far as eye surgery is concerned, in Aravinda Eye Hospital, Madhurai the patient was admitted on 10/12/2022 and discharged on 17/12/2022. The discharge summery from Dr.Ramesh Caridac and Multispeciality Hospital is filed in the course of the hearing. It shows that the patient was admitted on 5/3/2019 and discharged on 15/3/2019. Therefore, in the opinion of this Court, these documents do not by themselves support case of the long delay as set out in the affidavit. This is the main ground on which the delay is sought to be explained. In addition, the lack of proper advice is also asserted. In view of the details set out in the application and the counter and the long drawn battle including the filing of the Transfer CMP etc., this Court cannot presume that the petitioner did not have proper advice at all or that he was misguided in any manner. In addition, the lack of proper advice is also asserted. In view of the details set out in the application and the counter and the long drawn battle including the filing of the Transfer CMP etc., this Court cannot presume that the petitioner did not have proper advice at all or that he was misguided in any manner. In both the cases, lack of proper advice and medical reasons are not adequately or clearly proved for this Court to condone the delay. 11. In para 26 in The State of West Bengal v. The Administrator, Howrah Municipality and others (3 supra), the following was held: '26. The legal position when a question arises under S. 5 of the Limitation Act is fairly well settled. It is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" under S. 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstances or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to "sufficient cause" or not. It is needless to emphasis that courts have to use their judicial discretion in the matter soundly in the interest of justice.' 12. In the light of the facts of this case and the law on the subject, this Court is of the opinion that sufficient case is not made out to condone the delay in this case. It is made clear that the issue of competency of the Court to pass interim orders, the issue about the orders of being non est etc., are not in any way decided in this application by this Court. This application for condonation of delay is therefore dismissed. Consequently, the CMA is dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.