Allowed

Fabrico India Private Limited and Anr. v. Ecoboard Industries Limited and Anr.

Bombay HC5 Aug 2008WP/333/2008

Case brief

AI extract

What is this about?

The High Court allowed Writ Petitions rejecting the Sessions Judge's refusal to condone a delay of one month and 27 days in filing Revision Applications. The Court held a liberal approach to Section 5 of the Limitation Act was required and quashed the impugned orders, making the Revision Applications subject to payment of costs as a condition precedent.

What did the court decide?

Impugned judgments and orders dated 13th December 2007 are quashed and set aside; Criminal Miscellaneous Applications No.244, 245, 246 of 2006 are allowed with condonation of delay conditional on paym

Fabrico India Private Limited and Anr. Vs… — Civil Procedure and Limitation | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.333 OF 2008.

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Fabrico India Private Limited & Anr. ..Petitioners.

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versus

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Ecoboard Industries Limited & Anr. ..Respondents.

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WITH

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CRIMINAL WRIT PETITION NO.334 OF 2008.

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Fabrico India Private Limited & Anr. ..Petitioners. versus Ecoboard Industries Limited & Anr. ..Respondents.

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WITH

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CRIMINAL WRIT PETITION NO.335 OF 2008.

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Fabrico India Private Limited & Anr. ..Petitioners. versus Ecoboard Industries Limited & Anr. ..Respondents.

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Mr.Prakash Naik, for the Petitioners, in Crim.W.P.No.333/2008. Dr.Mr.A.K. Barthakar, for the Respondent No.1, in Crim.W.P.No.333/2008. Ms.P.P.Shinde, APP, for the Respondent No.2, in Crim.W.P.No.333/2008.

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CORAM : A.S. OKA, J. DATE : 5TH AUGUST,2008.

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P.C.

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Rule. The learned Advocate for the first

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Respondent waives service. The learned APP waives service for the second Respondent. Considering the

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narrow controversy involved in these Petitions, the

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same are taken up for final disposal.

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The Petitioners have been arraigned as

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accused	in	three s	eparate p	rivate com	plaints file	d by
the f	irst	Respondent.	In	the	said c	omplaints,
process		was issued	by the	learned	Magistrate o	n 23rd
May	20	07. The	Revision	Applications	were	preferred
by	the	Applicants	on 16th	November	2007 before	the
Sessions		Court.	Sep	arate	applications	for
condonation		of de	lay were	filed by	the	Petitioner.
The	said	Applications	were	opposed	by the	first
Respondent.		Accor	ding to	the Pet	itioners, the	delay
was	of	18 days.	The le	arned Session	s Judge by	the
impugned		judgment	and ord	er has	rejected	the
applications		for c	ondonation	of delay	filed by	the
Petitioners.		While	rejec	ting the	applications	for
condonation		of delay,	the	learned	Additional	Sessions

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Judge observed that the delay was of one month and 27 days which has not been properly explained.

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The learned Counsel for the Petitioners

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submitted	that the	peri	od	of	limita	tion	available	was
of 90	days and	not	of	30	days as	obser	ved by	the
learned	Additional	Ses	sions	Ju	dge.	He	pointed	out
that	from the ave	rmen	ts	mad	e in	the	applications	for
condonation	of delay,	i	t	was	crystal	clear	that	the
Petitioners	were diligent		and		there	was	negligence	on

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their part. He submitted that the delay was only of

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18 days and the same ought to have been condoned.

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4.	The	learned	Counsel appearing for the first
Respondent	po	inted	out that the Petition	ers	remained
absent	on	the	dates fixed before	the	learned
Magistrate.		He	pointed out that though	the	Advocate
for	Petitioners	receiv	ed a copy of the co	mplaint	on
30th	August	20	07, the Petitioners waited	till	16th
November	2007	to	file Revision Applications	and	there
is no	expla	nation	for the delay after 3	0th	August
2007.	He,	the	refore, submitted that there	was	every
justification	for		the learned Additional		Sessions

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Judge for rejecting the application for condonation

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of delay.

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I have carefully considered the submissions.

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It is well-settled proposition of law that a liberal approach is required to be adopted while deciding an

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application of condonation of delay under section 5

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of the Limitation Act, 1963.

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In the present case, the order issuing process was passed on 29th May 2007 and a summons was issued on 20th June 2007 which was made returnable on

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27th	July	2007. The	P	etitioners appeared	before the
learned	Trial	Judge on 3	0th	August 2007	through their
Advocate.		Alongwith t	he	summons, the	Petitioners
were	not	served with	the	copies of the	complaints.
The	copies	of the com	plaints	were obtained	by the
Advocate	for	the Petition	ers	on 30th Au	gust 2007.
Applications		for certified	cop	ies of the	impugned
orders	were	made on 4th	Oct	ober 2007 and	the copies

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were ready on 8th October 2007. The Revision

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Applications were filed on 16th November 2007.

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7. Perusal	of the averm	ents made	in th	e
applications shows	that	the	Petit	ioners	were	not
negligent and	had taken	steps	for		challenging	the
order issuing pro	cess.	Even	as	per	the	finding
recorded by the	learned	Sessions	Jud	ge,	the dela	y was
of one month	and 27	days.	The		learned	Additional
Sessions Judge	appears	to		have	taken	a
hyper-technical view	of	the	matter	by	declining	to
condone the delay.	The	learned	Jud	ge	ought to	have
condoned the delay.	Prej	udice,	if	any,	caused	to the

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first Respondent could have been compensated by

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ordering payment of costs.

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Therefore, the Petitions must succeed. Costs

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are quantified in the sum of Rs.5,000/- in each case.

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Hence, I pass the following order :-

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	(1) The imp	ugned judgements and	orders	dated
13th	December 2007	are quashed and	set	aside
and	Criminal	Miscellaneous	Ap	plication
Nos.244,	245, 246	of 2006 filed	by	the
Petitioners	are allowed.	The delay	in	filing
Revision	Applications	is condoned	subject	to
the	condition of	the petitioners pa	ying	costs
of	Rs.5,000/- in	each application	to	the
first	respondent within	a period of	six	weeks
from	today. The	payment of costs will	be	a
condition	precedent.	The deposit of		amount
of	costs with the	Sessions Court wit	hin	the
stipulated	period will	be treated	as	a
sufficient			com	pliance.

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	(2) I	t is	made clear	that	if com	plianc	e is
not	made wi	thin	the stipula	ted	time	eithe	r by
paying	the	costs	to the	first	Respond	ent	or
by	depositing	the	same	with	the		Sessions
Court,	the	order	of the	dism	issal	of	the
delay	condon	ation	applicatio	ns	will		stand.

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	(3)		If the	Petitioners	make	co	mpliance,	the
Revision		App	lications	shall	be	re	gistered	and
the	same		shall	be	disp	osed	of	as
expeditiou	sly		as	possible		and		preferably
within	a		period of	six m	onths	from	the	date
on	which		amount	of	costs		is	deposited.
	(4)	The	Writ		Petitions	are	allowed
accordingl	y.

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(5) The Parties and the Sessions Court to act upon an authenticated copy of this order.

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[ A.S.OKA, J.]

Fabrico India Private Limited and Anr. v. Ecoboard Industries Limited and Anr.

Case brief

What is this about?

What did the court decide?

Fabrico India Private Limited and Anr. v. Ecoboard Industries Limited and Anr.

Case brief

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What the court decided

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