Syncom Formulations vs SAS Pharamecuticals

G.S. Sistani

CM No. 81496/2009.

This is an application filed by the appellant u/s 5 of the Limitation Act seeking condonation of delay of 806 days in filing the present appeal.

Learned Counsel for the appellant submits that the judgment and decree was passed on 24.11.2006, however, the decree was drawn up only

on 25.5.2007. Counsel further submits that delay in filing the appeal was caused on account of the fact that after passing of the judgment and

decree the appellant sought advice from various counsels in Indore and Delhi about the merit and the grounds of the appeal. The appellant

thereafter approached the present counsel for preparing appeal in the month of March, 2007.

It is further contended by counsel for the appellant that the case of the appellant was being handled by the present law firm, which has senior

associate lawyers, who interact and receive instructions independently from the clients and one such counsel was interacting with the present

appellant. The said counsel had prepared the first draft of the appeal in the month of April, 2004, which was sent to the appellant for their

approval. The associate lawyer, who was handling the matter, in his email dated 31.7.2007 had written to the appellant that the appeal is being

filed and, thus, the appellant was under the impression that appeal had been filed, admitted and the same would come up for hearing in its normal

course.

Learned Counsel for the appellant submits that the counsel who had drafted the appeal left the services of the law firm, without giving status

report and without handing over the matters, which were being handled by him and, thus, the filing of appeal escaped the attention and was not

filed within the period of limitation. Counsel further submits that in April, 2009, when the appellant received execution papers, the appellant

contacted the law firm to find out the present status of the appeal and it was learnt that the appeal had never been filed. Counsel also submits that

non-filing of the appeal within the period of limitation was on account of inadvertence and it was neither intentional nor deliberate and in case delay

is not condoned, it would result in a meritorious matter being thrown out at the very threshold and cause of justice would be defeated.

Learned Counsel for the appellant relies upon Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, , in support of

the aforesaid plea which has been raised. Counsel for the appellant submits that in the case of Ram Nath Sao (supra), the Apex Court while

considering various judgments of the Supreme Court had condoned the delay in a partition suit, which has been decreed by the trial court and

thereafter four appellants had died during the pendency of the first appeal before the High Court. The court had taken into consideration that the

appellants were rustic villagers and illiterate.

Learned Counsel for the appellant submits that a liberal view should be taken in this matter and delay should be condoned.

The present application has been vehemently opposed by counsel for the respondent on the ground that the present application is extremely

casual in nature, devoid of material particulars and the appellant has suppressed the fact that the appellant company had knowledge of the

judgment as an application under Order 39 Rule 2(A) CPC was filed during the course of the suit and the same was pending even after passing of

the judgment. Counsel further submits that show cause notices were issued to the Director of the appellant company on 24.11.2006 and

12.12.2006. The appellant was well aware of the passing of the judgment and decree. Counsel also submits that perusal of the appeal itself would

show that the appeal was prepared on 4.4.2009 when the affidavit was duly attested, however, the appeal was filed after 51 days on 26.5.2009.

Counsel for the appellant has, however, submitted that although the appeal was ready but the same could not have been filed as they were awaiting

the cartons which were not available.

It is contended by counsel for the respondent that in the application it is nowhere stated that as to when the counsel had left the services of the

law firm and even otherwise the story is concocted and not reliable. It is further contended that the appellant has failed to show sufficient cause for

condoning the delay.

Learned Counsel for the respondent has placed reliance in the case of Love Kumar Sethi Vs. M/s Deluxe Stores & Ors., reported at 145

(2007) DLT 275 (DB), wherein the delay of 146 days were not condoned as the appellant had failed to provide the necessary documents in

support of the grounds for delay. The Division Bench has held that the appellant has not satisfied the Court regarding there being sufficient cause as

the facts must inspire confidence. Counsel further relies in the case of Ramey Vs. M.C.D., , wherein delay was not condoned and it was held as

under:

Learned Counsel for the appellant has drawn our attention to two judgments of the Supreme Court, namely, Collector, Land Acquisition,

Anantnag and Another Vs. Mst. Katiji and Others, and N. Balakrishnan Vs. M. Krishnamurthy, wherein it has been held that the court should

adopt a liberal approach while disposing of applications for condensation of delay and that the word ""sufficient cause"" u/s 5 of the Act should

receive a liberal construction so as to advance the cause of substantial justice.

We have perused the aforementioned judgments. There is no doubt that it is settled law that as against a technical and pedantic approach of

throwing out a party on grounds of delay and laches, ends of justice are better met by rendering a decision on merits.

At the same time, we would also like to refer to a judgment of the Supreme Court in the case of Salil Dutta Vs. T.M. and M.C. Private Ltd., ,

wherein, while distinguishing the decision in Rafiq and Another Vs. Munshilal and Another, , it was observed as below:

The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the

principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an

ex- parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but

there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such

an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and

circumstances of that case and cannot be understood as an absolute proposition.

In the light of the above and in the facts and circumstances of the present case, we are not persuaded to exercise our power of condensation of

delay in favor of the appellant. We are not inclined to condone the delay of 1203 days in filing the present appeal as the appellant has failed to

furnish any satisfactory Explanation in his application warranting condensation of delay. On the contrary, his application does not inspire any

confidence. Admittedly, no complaint has been filed against the Advocate who was allegedly not diligent in pursuing the litigation on behalf of the

appellant. Putting the entire blame upon the Advocate and trying to portray as if the appellant was illiterate and poor and hence totally unaware of

the nature and significance of the pending proceedings, is quite unacceptable, particularly in view of the fact that the appellant has entered into a

contract worth Rs. 20 lacs with the MCD and is, therefore, not only business savvy and worldly wise, but quite capable of taking care of his

commercial interests. He is not a rustic ignorant villager hailing from the backwaters who has no knowledge of the legal proceedings and the court

procedures.

I have heard counsel for the parties, who have taken me through the application and reply thereto. The basic facts are not in dispute that the

judgment and decree was passed on 24.11.2006. Present appeal has been filed on 26.5.2009 after a delay of 806 days.

In the case of P.K. Ramachandran Vs. State of Kerala and Another, , the Supreme Court has held that an essential prerequisite of exercising

discretion to condone the delay is that the Court must record its satisfaction that the explanation for delay was either reasonable or satisfactory.

Reading of the application for condonation of delay would show that after passing of the judgment and decree the appellant, which is a limited

company, had sought the advice from various counsels in Indore as well as Delhi from 24.11.2006 up till March, 2007. Thereafter the present

counsel was engaged to file an appeal. It has been strongly urged before this Court that the appellant was mislead by the email dated 31.7.2007

sent by the associate lawyer wherein it was stated that appeal is being filed. It has been submitted that the email created an impression in the mind

of the appellant that no further action was to be taken by them. I find no force in this submission of counsel for the appellant in view of the fact that

the appellant is a limited company having the benefit of a trained legal department. It is not understandable, how the appeal would have been filed

without the court fee, signatures and affidavit of the appellant. There is no plausible or reasonable explanation as to why the appellant was not

vigilant and why the appellant did not pursue the matter with his counsel from July, 2007, till April, 2009. As per the application after the impugned

judgment and decree was passed on 24.11.2006 the appellant spent time in seeking advice from various counsels in Indore and Delhi about the

merit and the grounds of the appeal and it is only in the month of March, 2007 that the appellant approached the counsel for preparing the appeal.

The period of limitation expired in February, 2007, thus as per the own showing of the appellant they approached their counsel after the expiry of

period of limitation. The reading of the application would show the callous and negligent attitude of the appellant, which would disentitle the

appellant from seeking discretionary relief of condonation of delay.

The judgment sought to be relied upon by counsel for the appellant are not applicable to the facts of this case, as the case of Ram Nath Sao

(supra) was decided taking into consideration that the appellants were rustic villagers and illiterate while in this case the position is entirely different.

While dealing with an application for condonation of delay u/s 5 of the Limitation Act, the Court must bear in mind two important

considerations. Firstly, the expiration of limitation for filing an appeal gives rise to a legal right to a decree-holder to treat the decree as binding

between the parties and this right should not be lightly disturbed. Second, if sufficient cause is shown for condonation of delay, the delay should be

condoned. It has been repeatedly held by the Supreme Court of India that the words ""sufficient cause"" should receive a liberal construction so as

to advance substantial justice. In the same breath, it has been held that the discretion should be exercised. When there is no negligence or inaction

nor want of bona fides imputable to the appellant the Court must be satisfied that there was due diligence on the part of the appellant.

The facts of this case are to be considered on the touchstone of the broad principles which have been laid down by the Supreme Court of

India while considering the present application for condonation of delay. The conduct of the appellant in the present case shows total callousness

and negligence. The appellant, which is a company, has been absolutely negligent in pursuing its matter. The application itself would show that

almost four months'' time was taken to seek advice. Further I find the explanation unsatisfactory that the files were misplaced from January to

December, 2008. Even after the files were traced in the month of January, the affidavit and the appeal were signed on 4.5.2009 while the same

was filed on 26.5.2009 after 51 days. Even, at this stage, the appellant did not seem to be in any hurry to file the appeal. The explanation rendered

that the appeal could not be filed as the cartons were not available is also without any merit and does not inspire confidence. In these

circumstances the Court is unable to satisfy itself that delay was caused due to sufficient reasons. Accordingly the application is dismissed.

RFA No. 190/2009 & CM No. 8147/2009.

In view of the fact that delay has not been condoned, appeal and CM No. 8147/2009 stand dismissed.