Case Note & Summary
The Bombay High Court dismissed an interim application filed by Bank of India seeking condonation of a 579-day delay in filing a commercial appeal against an order dated 9 November 2020. The bank claimed that its advocate, who was instructed to file the appeal, was suffering from cancer and bed-ridden, and therefore the appeal was not filed. The bank stated that it applied for certified copy on 11 November 2020, which was made available on 5 December 2020. The draft appeal was sent to the bank's Delhi branch for approval, and after approval, the advocate was instructed to file. The bank alleged that the advocate did not inform any developments and did not reply to queries. In mid-August 2022, the bank discovered that the appeal was not filed due to the advocate's illness. The court found that the bank did not exercise due diligence in following up with the advocate or appointing a new advocate. The delay was not sufficiently explained, and the application was dismissed.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The appellant bank sought condonation of 579 days delay in filing appeal, citing that its advocate was bed-ridden due to cancer and failed to file the appeal. The court held that the explanation was not sufficient as the bank did not take timely steps to follow up with the advocate or appoint a new one. The delay was not satisfactorily explained. (Paras 1-4)
B) Limitation Act - Condonation of Delay - Section 5 - Negligence of Counsel - The court observed that mere negligence of counsel without any diligence on the part of the litigant does not constitute sufficient cause. The bank was expected to monitor the progress of the appeal and could not remain passive for over a year. (Paras 2-4)
Issue of Consideration
Whether the delay of 579 days in filing the appeal should be condoned on the ground that the appellant's advocate was suffering from cancer and bed-ridden, and the appellant was unaware of the non-filing.
Final Decision
The application for condonation of delay is dismissed.
Law Points
- Condonation of delay
- Sufficient cause
- Negligence of counsel
- Limitation Act
- Section 5
Case Details
2022 LawText (BOM) (12) 97
Interim Application No. 30326 of 2022 in Commercial Appeal From Order (L) No. 27216 of 2022
K. R. Shriram, Kamal Khata
Mr. O. A. Das for appellant/applicant, Ms. Akshaya Puthran i/by S. K. Singhi & Partners for respondent no.2, Mr. Karan Bhosle a/w. Ms. Priyanka Dubey, Ms. Megha Gupta i/by Hedgehog Fox LLP for respondents
Magnifico Minerals Private Limited & Bank of Baroda
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Nature of Litigation
Interim application for condonation of delay in filing commercial appeal
Remedy Sought
Condonation of 579 days delay in filing appeal
Filing Reason
The appellant's advocate was suffering from cancer and bed-ridden, and failed to file the appeal
Previous Decisions
Impugned order dated 09.11.2020 was passed by the trial court
Issues
Whether the delay of 579 days in filing the appeal should be condoned
Submissions/Arguments
The appellant submitted that the advocate was suffering from cancer and bed-ridden, and the bank was unaware of non-filing until mid-August 2022
Ratio Decidendi
The explanation for delay was not sufficient as the bank did not exercise due diligence in following up with the advocate or appointing a new advocate. Mere negligence of counsel without diligence on part of litigant does not constitute sufficient cause under Section 5 of the Limitation Act.
Judgment Excerpts
The reasons to grant condonation, can be found in paragraph nos.2 to 4 which read as under...
The Applicant was under the impression that Applicant's earlier Advocate has filed the Appeal against the Impugned Order.
Upon the Head Office, Legal section enquiry it was revealed that earlier Advocate was suffering from Cancer and Bed-ridden and his Office was closed further came to know that the Appeal was not filed due to his illness.
Procedural History
The impugned order was passed on 09.11.2020. Certified copy applied on 11.11.2020 and made available on 05.12.2020. The appellant instructed its advocate to file appeal. The draft was approved by the legal department. The appellant believed the appeal was filed. In mid-August 2022, the appellant discovered the appeal was not filed due to the advocate's illness. The present application for condonation of delay was filed.
Acts & Sections
- Limitation Act, 1963: Section 5
