Allowed

Shashipal Singh v. Ms Sriram Transport Finance Co. Ltd. and Another

Allahabad HC25 Jul 2024FAFO/535/2024

Case brief

AI extract

What is this about?

First appeal against rejection of delay condonation application for recall of order passed in absence. Court set aside impugned orders allowing fresh hearing on merits subject to cost.

What did the court decide?

Orders dated 26.9.2023 and 24.3.2022 set aside subject to cost of Rs. 10,000/-; Executing Court directed to decide on merits within three months.

Shashipal Singh vs Ms Sriram Transport Finance… — Execution and Attachment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:118725

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Court No. - 35

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Case :- FIRST APPEAL FROM ORDER No. - 535 of 2024

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Appellant :- Shashipal Singh Respondent :- Ms Sriram Transport Finance Co Ltd And Another Counsel for Appellant :- Parvez Alam,Raj Narayan Counsel for Respondent :- Ekansh Varma

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Hon'ble Vipin Chandra Dixit,J.

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Counter affidavit on behalf of respondent no.1 and rejoinder affidavit on behalf of appellant have been filed today, which are taken on record.

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Heard Sri Parvez Alam, learned counsel for the appellant, Sri Ekansh Varma, learned counsel appearing on behalf of Sriram Transport Finance Company Limited/respondent no.1 and perused the record.

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This first appeal from order under Order 43 Rule 1(c) of C.P.C. has been filed by the appellant against the order dated 26.9.2023 passed by Additional District Judge, Court No.4, Mathura in R.M. Case No.396 of 2022 (Shashipal Singh Vs. M/s Sri Ram Transport Finance Co. Ltd.), by which the delay condonation application filed in support of recall application has been rejected with cost of Rs.250/-.

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Brief facts of the case are that the respondent no.1 has filed Arbitration Execution Case No.43 of 2014 for recovery of Rs.1,00,705/- along with 12% interest against the appellant. The appellant has put in appearance before the executing court and filed objection which was registered as Misc. Case No.30 of 2020. The Misc. Case No.30 of 2020 was dismissed by the Additional District and Sessions Judge, Court No.7, Mathura vide order dated 24.3.2022 in absence of appellant. The appellant had moved an application for recalling of order dated 24.3.2022 along with delay condonation application, which was registered as Misc. Case No.396 of 2022. The delay condonation application was rejected by impugned order dated 26.9.2023.

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It is submitted by learned counsel for the appellant that on account of registration of F.I.R. against the appellant he could not attend the court proceedings and when the case was listed on 24.3.2022 the counsel for the appellant was also not present before the court

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and the objection of the appellant was dismissed in default. There was no deliberate negligence on the part of the appellant in pursuing his objection.

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On the other hand, learned counsel appearing on behalf of respondent no.1 submits that executing court has recorded the finding while dismissing the Misc. Case No.30 of 2020 that for last several dates the appellant was not present before the court. The last opportunity was also provided on 12.3.2021. In spite of last opportunity the appellant could not present before the court to press his objection and even his counsel was also not present. It is further submitted that the appellant only to delay the disposal of Execution Case No.43 of 2014 has deliberately avoiding the court proceedings and had filed recall application on frivolous grounds.

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From perusal of impugned order it appears that the appellant is negligent and careless in pursuing his recall application and there is no illegality in the order passed by Executing Court.

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In the interest of justice, one opportunity is provided to the appellant to press his objection on merits.

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In view of above, the first appeal from order is allowed and orders dated 26.9.2023 and 24.3.2022 are set-aside subject to payment of cost of Rs.10,000/-. The Executing Court is directed to expedite the proceedings and decide the Arbitration Execution Case No.43 of 2014 and Misc. Case No.30 of 2022 on merits within a period of three months from the date of production of certified copy of this order, without granting undue adjournments to either of the parties, unless there is any legal impediment.

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Learned counsel for appellant is directed to pay cost of Rs.10,000/through bank draft payable to Sri Ekansh Varma, learned counsel appearing on behalf of Sriram Transport Finance Company Limited/respondent no.1, within two weeks.

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Order Date :- 25.7.2024 Kpy

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Digitally signed by :- KAVLESHWAR PRASAD YADAV High Court of Judicature at Allahabad

Shashipal Singh v. Ms Sriram Transport Finance Co. Ltd. and Another

Case brief

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Shashipal Singh v. Ms Sriram Transport Finance Co. Ltd. and Another

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