The High Court dismissed a writ petition challenging the lower appellate court's order dismissing notice for condonation of delay in filing an appeal due to lack of sufficient grounds and negligence by the petitioner bank.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE
WRIT PETITION NO.1401 OF 2006
Teh Indian Bank .. ..Petitioner
Versus
Shri Bharat Champaklal Lalwani & Anr. ..Respondents
Mr.P.K.Dhakephalkar i/b J.G.Reddy for petitioner
Mr.A.K.Abhyankar i/b K.K.Nariman for respndent nos.1 and 2
CORAM : P.V.KAKADE, J.
DATE : 12TH APRIL 2006
P.C.:
1. Heard the learned counsel for both the parties.
Perused the record.
2. This petition is against the order passed by the
lower appellate court dated 14.12.2005 discharging the
notice, which was moved by the present petitioner for
condonation of delay in filing the appeal against the
judgment and decree dated 9th December, 2003 in T.E.& R.
Suit No.308/323 of 2001. The appeal was presented on
11.3.2005 and it was barred by limitation and therefore,
the notice was taken out for condonation of delay.
3. After hearing both the sides the lower court found
that there was no sufficient ground to condone the delay
and dismissed the notice, hence the present petition.
4. At the outset, it may be noted that the grounds
mentioned for delay are to the effect that the certified
copy of the judgment was applied for on 10th December,
2003 and it was delivered on 14th January 2004. The
earlier advocate forwarded Xerox copy to the appellants.
The said copy was forwarded to the head office as well as
regional office of the appellant bank for necessary
instructions to prefer the appeal. However, the Branch
Manager, was transferred from the said branch and the same
could not followed by him. Meanwhile, the copy was lying
with the head office and regional officer for
consideration to file appeal. The head office instructed
to the regional office in January, 2005 to file appeal and
the said communication was telephonically conveyed in the
last week of January 2005. Thereafter the Branch office
entrusted the papers for the filing of the appeal to the
advocate on record with covering letter with request to
prepare the memo of appeal. The advocate prepared memo of
appeal, but it cannot be filed for want of certified copy
of the judgment and decree and in all these process the
delay had occurred, which is sought to be condoned. The
respondent resisted the notice, inter alia, denying the
allegations and submitted that the delay was not
sufficiently explained.
5. The lower appellate court was of the view that the
grounds mentioned by the petitioner seeking condonation of
delay were not sufficient to condone the delay and
dismissed the application.
6. On perusal of the reasoning adopted by the lower
appellate court it is apparent that there is absolutely no
explanation of one year delay, especially if we take into
account the manner in which it is sought to be explained,
I am satisfied that the delay has occurred only due to
sheer negligence on the part of the officers of the
petitioner and hence cannot be said to be sufficient to
cause to condone the delay. It may also be noted that it
is an admitted position that physical vacant possession of
the suit premises is already handed over to the landlord,
who has taken possession without prejudice to his right to
recover mesne profits under decree dated 9.12.2003.
7. Be as it may, the fact remains that there is no
merits in the petition and hence it deserves to be
dismissed. Hence the petition stands dismissed with no
order as to costs.
1 issue framed by the court
Whether the delay in filing an appeal can be condoned on grounds of negligence and transfer of officers.
Teh Indian Bank
Shri Bharat Champaklal Lalwani
P.V.KAKADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court