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Skipper Beverages Pvt. Ltd V/S Industrial Finance Corporation of India

    Misc. Application No. 135 of 2003 in Misc. Appeal No. 32 of 2003
    Decided On, 16 September 2004
    At, Debt Recovery Appellate Tribunal At Delhi
    By, THE HONORABLE JUSTICE: K.S. KUMARAN (CHAIRPERSON)
    For Petitioner: Ratan Kumar Singh, Advocate And For Respondents: S.S.L. Gupta, Advocate.


Judgment Text

1. The appellant-defendant's oral request to file the written statement (o the amended O.A was declined by the learned Presiding Officer of the Debts Recovery Tribunal-I, Delhi (hereinafter referred to as 'the DRT') by the impugned order dated 29.10.2002. Aggrieved, the appellant has preferred the appeal and this application for condonation of delay in filing the appeal. The respondent has filed a suitable reply opposing the application.

2. I have heard the Counsel for both the sides, and perused the records.

3. The impugned order was passed on 29.10.2002, and the appeal has been presented on 3.2.2003. The learned Counsel for the appellant contends that the application for certified copy of the impugned order was made on 22.11.2002, and that the said copy was prepared by the DRT on 18.12.2002. He also contends that the case file was not traceable in the office of the erstwhile Counsel for the appellant, and that the appellant had also to apply for the certified copy of the order dated 16.9.2002 on 24.12.2002, but, though the copy of the order was prepared on 3.1.2003, the same was not made available on the ground that it had to be signed by the Assistant Registrar of the DRT-I, that the days which followed were Saturday and Sunday and, therefore, the certified copy was made available only on 6.1.2003. The learned Counsel for the appellant contends that the director of the appellant-company Mr. Neeraj Manocha, who is a resident of Hansi (District Hissar, Haryana), was sick from 17.1.2003 to 1.2.2003 and, therefore, he could not come to Delhi for preparation and finalisation of the appeal. The learned Counsel for the appellant contends that after said Neeraj Manocha became well, he rushed to Delhi, finalized and filed the appeal. Therefore, according to the learned Counsel for the appellant, there occurred a delay in filing the appeal, which has to be condoned. He also contends that no free copy of the impugned order was supplied to the appellant.

4. Though in the application it has been mentioned that the delay is of 12 days, it is apparently not correct. Because, the impugned order was passed on 29.10.2002, and the appeal had to be filed within 45 days thereafter. That means the appeal should have been filed on or before 13.12.2002, whereas, this appeal was filed on 3.2.2003 only, That means the appeal was filed 97 days after the date of the impugned order. But, the copy of the impugned order was applied for on 22.11.2002. and it was made ready on 18.12.2002, i.e. it had taken 26 days to procure the copy. After the said period of 26 days is deducted from the above said 97 days, the time taken by the appellant will come to 71 days for filing the appeal. If the period of 45 days allowed to the appellant to file the appeal is also deducted, then the delay comes to 26 days. But, the appellant wants to contend that it had also applied on 24.12.2002 for the copy of the another order dated 16.9.2002, which was made available on 6.1.2003, and of this period is also deducted, then the delay will be of only 12 days. But, as rightly contended by the learned Counsel for the respondent, this period, which was taken by the appellant for applying for a copy of another order dated 16.9.2002, cannot be taken into consideration at all. The period that has to be taken into consideration is only the period between the date on which the copy of the impugned order was applied for and the date on which it was made ready. Therefore, this contention of the appellant that there is a delay of only 12 days cannot be accepted. Further, even according to the appellant, the copy of the other order dated 16.9.2002 was made available on 6.1.2003 itself. It has been stated that the director of the company Mr. Neeraj Manocha fell ill between 17.1.2003 to 1.2.2003 and, therefore, he could not give instructions for preparation and filing of the appeal. The appellant has, of course, produced what purports to be a certificate given by a doctor stating that Mr. Neeraj Manocha was ill, and was advised rest from 18.1.2003 and 7.2.2003. The learned Counsel for the respondent contends that no reliance can be placed upon this certificate, as even the qualification of the said doctor has not been set out in the said certificate. But, even assuming that Mr. Neeraj Manocha, the director of the appellant, was ill from 17.1.2003, there is no explanation for the period from 6.1.2003 to 16.1.2003. But, the learned Counsel for the appellant contends that 45 days from 29.10.2002 expired on 13.12.2002 and if the 26 days taken for getting the certified copy of the impugned order is also excluded, then the appeal could have been filed on 9.1.2003, and by excluding the date of filing the appeal and the date of the impugned order, the period will get extended up to 11.1.2003. He also contends that 11.1.2003 and 12.1.2003 being Saturday and Sunday respectively, the appeal could have been filed on 13.1.2003. But this calculation is not correct since the correct calculation has been indicated above. Even otherwise, even according to him, there is no explanation for the delay between 13.1.2003 and 17.1.2003, the date when Mr. Neeraj Manocha is alleged to have fallen ill. That is why Mr. Neeraj Manocha filed an additional affidavit dated 3.12.2003 stating that the appellant was under a bona fide impression that he had sufficiently explained the delay, which was an inadvertent mistake.

5. But, the learned Counsel for the respondent contends that the medical certificate cannot be relied upon, and that even if Mr. Neeraj Manocha had fallen ill, it does not mean that the appeal could not have been or should not have been filed earlier, since, there are other directors. The respondent has mentioned in its reply to this application the name of the other directors of the company, namely, Ashok Chopra, Pawan Chopra and Poonam Chopra. and has also alleged that the illness of Mr. Neeraj Manocha is only a pretext. He also contends that the appeal has been filed against the order dated 29.10.2002 passed by the DRT, which does not in any way affect the substantial rights of any of the parties, including the appellant. He contends that without changing any fact, only the prayer in the O.A was amended, and that the appellant, who had remained ex parte, wanted to reopen the entire proceedings by seeking to file a reply to the amended O.A., and that was rejected by the DRT. He, therefore, contends that the intention of the appellant is to delay the proceedings, and the conduct of the appellant is also not bona fide. The respondent has also filed a reply to the additional affidavit filed by Mr. Neeraj Manocha stating that the Counsel for the appellant had appeared before the DRT only on 29.10.2002 (the date of the impugned order), that too without filing the Vakalatnama, when the matter had been fixed for final arguments.

6. But, I am of the view that I need not go into the merits of the appeal at this stage. It is evident that besides Mr. Neeraj Manocha there are other directors. They could have given instructions for filing the appeal, and through them the appeal could have been filed. Even the explanation, namely, that Mr. Neeraj Manocha was ill for a particular period, does not explain the period of limitation completely. Even according to the appellant, the period of delay from 13.1.2003 to 17.1.2003 remains without any explanation. The appellant cannot also derive any benefit from the fact that the appellant had applied for the certified copy of the order dated 16.9.2002, and had got the same on 6.1.2003. That cannot in any way extend the period of limitation.

7. The learned Counsel for the appellant-defendant relies upon the decisions in State of W.B. v. Howrah Municipality: AIR 1972 SC 749; C. Ramegowda v. Special Land Acquisition Officer, Bangalore: AIR 1988 SC 897; Rameshwari Devi v. Sansar Chand, AIR 1986 HP 67 in support of his contention that this Tribunal should adopt a liberal approach while considering the application for condonation of delay.

8. But, in my view, these decisions will not apply to this case on hand inasmuch as the conduct of the appellant-defendant is not bona fide. The appeal could have been filed by any one of the other

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directors and there is no explanation for not having done so. The appellant-defendant has calculated the number of days of delay in its own way and attempted to explain it by giving unacceptable reasons, i.e., by saying that it had to apply for some other order also, and also by producing a medical certificate for a particular period. Even thereafter a brief period remains unexplained. The intention of the appellant-defendant is to drag on the proceeding is evident. 9. Taking into consideration all these aspects, I am of the view that the conduct of the appellant has not been bona fide, and the appellant has been negligent in taking earnest steps for filing the appeal in time. Therefore, I am of the view that there are no grounds for condoning the delay in filing the appeal. 10. Accordingly, the application fails, and is dismissed. Copy of this order be furnished to both sides.
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