Ambition Travels & Tours vs Mrinalini Das & Ors

Seen the office report.

Apart from correction of the nomenclature as F.M.A.T., the other defects have been removed.

Liberty is granted to the learned Advocate for the Appellant to correct the nomenclature of the appeal.

Considering the subject matter of the appeal, this Court was of the opinion that the appeal itself could be disposed of upon service of notice upon the respondents.

Today, the learned Advocate for the appellant has filed the affidavit of service indicating that the Memorandum of Appeal and the application under Section 5 of the Limitation Act for condonation of delay has been served on the respondents.

None appeared on behalf of the respondents, excepting the respondent no.3, i.e. I.C.I.C.I. Bank Ltd.

Let the affidavit of service filed in Court today be kept with the record.

Under such facts and circumstances, the appeal is taken up for hearing along with the application for condonation of delay.

In re : C.A.N. 2890 of 2017

On perusal of the ground stated in paragraphs 3 to 6 of the application for condonation of delay, we are satisfied that the appellant has shown sufficient cause in not filing the appeal within the prescribed period of limitation. The delay of 16 days in filing the instant appeal is condoned.

Let the appeal be regularized.

In re: F.M.A.T. 572 of 2018

Learned Advocate for the appellant submits that the learned Court below while dismissing the application under Section 5 of the Limitation Act filed in connection with the application under Order 9 Rule 9 of the Code of Civil Procedure for recalling of the order of dismissal of the suit for default on account of non appearance of the learned Advocate appointed in the Trial Court to contest the suit, did not assign any reasons.

Learned Advocate appearing on behalf of the I.C.I.C.I. Bank Limited submits that no useful purpose will be served by allowing the instant appeal in view of the fact that the application for condonation of delay filed by the appellant in the learned Court below in connection with the application under Order 9 Rule 9 of the Code of Civil Procedure for recalling of the order of dismissal of the suit was barred by inordinate delay of 169 days and such inordinate delay was not clearly explained by the appellant and as such as per the settled principles of law the delay could not be condoned in view of the fact that the appellant was not seriously pursuing his remedy in the learned Court below.

We have gone through the records as also the causes shown in the application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 9 of the Code of Civil Procedure. We find that on the first date, i.e. on November 18, 2014, none appeared on behalf of the appellant as there was misposting of the date of hearing of the suit in the diary of the learned Advocate, namely, Sri S.K. Sharda, who was engaged in the learned Court below and the date was wrongly posted by him in his diary as December 18, 2014.

Thereafter, the appellant engaged another learned Advocate, namely, Tarkeshwar Pal, to proceed with the suit. On January 6, 2015, the said learned Advocate accepted all the papers and he was ready to appear before the learned Court below. Thereafter, on June 2, 2015, the appellant came to know that the said learned Advocate, Mr.Tarkeshwar Pal, expired and the appellant contacted another learned Advocate, namely, Ms. Varsha Bansal Agarwal, on the very next date, i.e. on June 3, 2015.

The learned Advocate, Ms. Varsha Bansal Agarwal has filed the application on June 6, 2015.

Considering the facts as aforesaid, we find that the appellant has been able to show sufficient cause for the delay in filing the application under Order 9 Rule 9 of the Code of Civil Procedure which was registered as Misc. Case No. 1795 of 2015.

We are of the view that the interest of justice would be sub served if the application under Section 5 of the Limitation Act filed in connection with Misc. Case No. 1797 of 2015 arising out of Title Suit No. 474 of 2014 is allowed and the delay in filing the Misc. Case No. 1797 of 2015 of 169 days is condoned.

Since nothing remains to be decided in the appeal, the appeal and the application are disposed of accordingly with a direction upon the learned Judge, 7th Bench, City Civil Court at Calcutta, to hear out the Misc.Case No.1797 of 2015 expeditiously and preferably within a period of three months from the date of communication of this order.

If the respondents/defendants in the learned Court below have not filed their written objection to the application under Order 9 Rule 9 of the Code of Civil Procedure, they shall be at liberty to file the same within 15 days from the date of receipt of the server copy of this order along with the application under Order 9 Rule 9 of the Code of Civil Procedure to be served upon them within a week by the appellant both by registered post with A/D as also by personal service upon the learned Advocate appearing for them behalf on their learned Court below.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.