(1) THIS is an application filed by m/s. Transworld Shipping Service India pvt. Ltd. (Petitioner-appellant) for condonation of delay of 466 days in preferring an appeal against the judgment of the learned single Judge (Raghuvir, J. , as he then was)dated 20th March, 1987. The Application is opposed by M/s Harwan Investment and Trading Pvt. Ltd , (Respondent-Plaintiff) which filed the suit, OS No. 1 of 1984, against defendants 1 and 2, the ship and its owner respectively, and the 3rd defendant (Petitioner-Appellant) who is an agent of the 2nd defendant for a joint and several decree for recovery of Rs 14. 25. 000/ with interest. The learned Single Judge decreed the suit as prayed for. Against that judgment, the defendants 1 and 2 filed an appeal, but no appeal was filed by the present appellant.
(2) THE 3rd defendant filed the appeal in this Court on 28th July, 1988. As the appeal was barred by limitation, the present application, C. M. P. No. 14272 of 1985, has been filed for condonation of delay. It is stated in the affidavit of the managing Director of the appellant filed in support of the application for condonation of delay that ever since the start of this litigation, the manager of the Madras office of the appellant, Sri S Rajagopalan, was looking after the case and he was the power-of-attorney holder of the appellant and conducted the case on behalf of the appellant. The appellant learnt of the decree only when a letter dated 1-6-1988 was received from the advocate of the respondent-plaintiff calling upon the appellant to pay the amounts as decreed by this court by its judgment dated 20th March, 1987. It is again stated that the Managing director immediately rushed to the Madras office to find out how such a decree came to be passed and that, as the Manager Sri s. Hajagopalan had left their concern in january, 1988, there was no information available and thereafter he went to Hyderabad and approached the advocate and obtained copies of the judgment and decree. It is stated that, after obtaining information at Hyderabad, an application was filed for amendment of the preamble of the decree and it was allowed on 1-7-1988. It is not the case of the petitioner-appellant that limitation begins to run from the date of amendment but it is accepted that it runs from the date of the judgment and decree, i. e. 20-3-1988. It is pointed out that till the receipt of the letter dated 1-6-1988 from the Counsel of the respondent-plaintiff, the petitioner-appellant was not aware of the decree.
(3) A counter-affidavit has been filed on behalf of the respondent-plaintiff. It is pointed out in the counter-affidavit that against the judgment of the learned single Judge, on appeal has been filed by the petitioner-appellant (3rd defendant), but an appeal was filed by the defendants 1 and 2 which stood transferred to the supreme Court in view of the earlier order of the Supreme Court in S. L P. (Civil) No. 10542 of 1985. In S. L. P. (Civil) No. 10542 of 1985, the respondent-plaintiff filed c M. P. No 25075 of 1987 for an order that the defendants 1 and 2 be directed to furnish a bank guarantee in a sum of rs. 26,00,000/- to cover the balance of the decretal amount payable to the respondent-plaintiff under the decree dated 20th march, 1987 and also for a further order that the respondent-plaintiff should be given liberty to execute the decree against the present appellant (3rd defendant) since the present appellant has not filed any appeal against the judgment of the learned single Judge. A copy of the said application of the respondent-plaintiff was served on the advocate for the original defendants as well as the present appellant, who had filed his appearance on their behalf in the supreme Court in S. L. P. (Civil) No. 10542 of 1985. The Supreme Court passed an order dated 30-11-1987 in the said C. M. P. and thereby ordered that the respondent-plaintiff be permitted to encash the bank guarantee furnished by the defendants 1 and 2 for Rs. 14,25,000/- upon the respondent-plaintiff furnishing his own bank guarantee for the said amount to the satisfaction of the Registrar of this Court. The Supreme court thereby further ordered that the respondent-plaintiff is permitted to execute the said decree against the appellant (3rd defendant).
(4) IN view of the manner in which the proceedings in C M. P. No. 25075 of 1987 were conducted in the Supreme Court by the pstitioner-appellant, the petitioner-appellant had full knowledge of the appeal and the decree passed by this Court dated 20th March, 1987; and it is not correct on the part of the petitioner-appellant to say that they came to know of the decree only on the receipt of the letter dated 1-6-1988 from the Counsel for the respondent-plaintiff.
(5) IN the reply which has been filed on behalf of the petitioner-appellant to the counter-affidavit filed on behalf of the respondent-plaintiff, there is no denial that the Counsel for the respondent-appellant had been served with the order in c. M. P. No. 25075 of 1987 decided by the supreme Court. The averment of the deponent on behalf of the petitioner-appellant that he was not aware of the decree is neither here nor there. When once the counsel for the petitioner-appellant was served with a copy of C. M. P. No. 25075 of 1987, it does not lie in the mouth of the petitioner-appellant to say that they came to know of the decree only by the letter dated 1-6-1988. Since the application for condonation of delay is based on incorrect facts, it is liable to be dismissed.
(6) IT is also pointed out on behalf of the Counsel for the respondent-plaintiff that the present appeal as filed is without leave of the learned Single Judge who tried the suit and, therefore, is not maintainable in the absence of leave in view of Rule 59 of the Rules for regulating the Procedure in cases brought before the High Court of judicature at Madras under the Colonial courts of Admirality Act, 1890 applicable to this Court. The. Appeal itself has not been properly filed. Admittedly no applic
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ation was made before the learned single judge for leave to appeal by the petitioner-appellant (3rd defendant) who has come up before us. Without the grant of leave under the aforesaid Rule 59, an appeal will not be properly filed. Rule 59 reads as follows :"there shall be no appeal from any order or judgment of the Judge except on a question of law, and then only by his leave". In view of this absolute bar, the application for condonation of delay in filing the appeal without leave of the learned Single judge is not properly filed and is itself meaningless. (7) FOR the aforesaid reasons, the application is dismissed with costs. Advocate's fee Rs. 500/ -.