Mallikarjun Gangadharappa Ankalkote and Another Vs M/S Goyal Trading Company through Power of Attorney Holder D M Agarwal

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(1)W.P. No. 04250 of 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Writ Petition No. 04250 of 2017

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District : Latur

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1.Mallikarjun Gangadharappa Ankalkote,
Age : 61 years,
Occupation : Business,
R/o. Opposite R.R. Tapadia
 (Chartered Accountant),
Kamdar Road, Latur.

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2.Sambappa Mallikarjun Ankalkote,
Age : 39 years,
Occupation : Business,
R/o. Opposite R.R. Tapadia.. Petitioners
 (Chartered Accountant), (Original
Kamdar Road, Latur. defendants)

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versus

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M/s. Goyal Trading Company,
A registered Partnership Firm,
Represented by its partner,
Shri Rameshchandra Pralhadrai
Agarwal,
Age : 65 years,
Occupation : Business,
R/o. Navandar Galli, Latur,
Through Power of Attorney Holder,
Shri Damodar Mathuraprasad
Agarwal,
Age : 72 years,.. Respondent
Occupation : Business, (Original
R/o. New Adarsh Colony, Latur. plaintiff)

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...........

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Mr. Dhananjay P. Deshpande, Advocate, for the petitioners.

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...........

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(2)W.P. No. 04250 of 2017

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CORAM : M.S. SANKLECHA, J.

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 DATE : 25TH APRIL 2017

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ORAL ORDER :

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This petition under Article 226 of the
Constitution of India challenges the order dated 25th
November 2016, passed by the District Judge, Latur.
The impugned order has condoned delay of 93 days in
filing an appeal from the order / judgment dated 10th
February 2015 passed by the Extra Joint Civil Judge
(Senior Division), Latur.

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02.The impugned order records that the appeal
has been filed by one Mr. Damodhar Agarwal, the power
of attorney holder of M/s. Goyal Trading Company, a
partnership firm. The reason set out by the
applicant i.e. power of attorney holder for not
filing the appeal in time was that he was unwell and
was under treatment of Dr. Anil Rathi and, therefore,
was not able to contact his Advocate for filing the
necessary appeal. Similarly, one of the partners of
the appellant  Firm was not keeping well as he was
suffering from blood pressure, diabetics and cardiac
issues, which resulted in his being unable to contact
the Advocate. Oral evidence of Mr. Damodar Agarwal
was recorded and on consideration of the same, the
impugned order records that the delay has been
satisfactorily explained. In particular, it records
the fact that though there are four partners of M/s.
Goyal Trading Company, three partners are ladies and

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(3)W.P. No. 04250 of 2017

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only male partner Mr. Rameshchandra Agarwal who was
unable to attend to the litigation as he was unwell
and was advised bed rest. It was in the aforesaid
circumstances, the power of attorney holder Mr.
Damodar Agarwal had to attend all legal proceedings
including filing of appeal. In these circumstances,
the Court was satisfied that the appeal could not be
filed by the power of attorney holder within time due
to his illness and the illness of sole male partner
of the firm. The delay was condoned on payment of
costs of Rs. 5,000/.

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03.Mr. Deshpande, learned Counsel appearing for
the petitioners, submits that the Firm had four
partners and only evidence of one of the partners was
led by the respondents. The other three partners,
according to Mr. Deshpande, should have prosecuted
the appeal, if their power of attorney holder was not
well. This submission of Mr. Deshpande cannot be
accepted as the impugned order records that out of
four partners, three partners are ladies and one male
partner is unwell. Therefore, power of attorney had
been given by them to Mr. Damodar Agarwal. In the
context of the fact that the male partner was not
keeping well and the power of attorney holder Mr.
Damodar Agarwal was also suffering from illness, the
satisfaction of the Court that he was unwell and
could not meet his Advocate for the purpose of filing
appeal was found to be a reasonable explanation for
the delay.

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(4)W.P. No. 04250 of 2017

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04.The above view taken in the impugned order
cannot be said to be perverse so as to exercise
supervisory jurisdiction of this Court under Article
227 of the Constitution of India.

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05.Notwithstanding the expression of my above
view, Mr. Deshpande proceeded to make submission that
in view of the decisions of the Apex Court and this
Court, the impugned order calls for interference
under Article 227 of the Constitution of India. Mr.
Deshpande first invited my attention to the decision
of this Court in the case of Smt. Varhyan and others
Vs. Smt. Kala, Ku. Sonu and Ku. Jeetu [2015(6) ALL MR
324]. The said decision was rendered in an appeal
filed against the order passed in Second Appeal from
an order passed in First Appeal rejecting the
application of the petitioner therein for condonation
of delay. There was delay of 354 days in filing the
appeal. Moreover, the jurisdiction which was
exercised by the Court in the aforesaid decision was
an appellate jurisdiction and not supervisory
jurisdiction under Article 227 of the Constitution as
in this case. Thus, it would not have any
application to the present facts. Needless to state,
the exercise of discretion to condone or not to
condone the delay depends upon facts of each case and
reasons set out before the authority for the purpose
of exercising jurisdiction of condonation of delay.

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06.The other decision relied by Mr. Deshpande
is of the Apex Court in the case of Balwant Singh

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(5)W.P. No. 04250 of 2017

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(Dead) Vs. Jagdish Singh & others [2010(6) ALL MR 480
(S.C.)]. The said decision was rendered in the
context of 778 days delay in bringing legal heirs on
record so as to set aside abatement of the suit. In
the facts urged before it, the Court found that the
reasons set out for the delay in taking out the
application to set aside the abatement were not
sufficient. The Court found that the applicants were
callous about pursuing appeal and they had acted
irresponsibly and with negligence. Besides, the
Court has also recorded the fact that the applicants
have not set out sufficient reasons for condoning the
inordinate delay. From the above facts, it is
evident that the circumstances and the facts before
the Apex Court in dealing with the delay condonation
application for setting aside abatement of suit were
completely different from the facts which arise in
the present case. The aforesaid two decisions relied
by Mr. Deshpande are of no assistance to the
petitioners in the present facts.

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07.Needless to mention, that time and again,
the Apex Court has laid down that in the matter of
condonation of delay, the Courts should be pragmatic
and justice oriented. The impugned order has awarded
costs of Rs. 5,000/ to the petitioners while
condoning the delay.

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08.In the present facts, the discretion
exercised by the learned District Judge cannot be
said to be perverse. No interference is called for

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(6)W.P. No. 04250 of 2017

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in the impugned order in exercise of extraordinary
jurisdiction of this Court under Article 227 of the
Constitution.

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09.In the result, the Petition is dismissed.
No order as to costs.

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 ( M.S. Sanklecha )
 JUDGE
...........

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puranik / WP4250.17

Mallikarjun Gangadharappa Ankalkote and Another v. M/S Goyal Trading Company through Power of Attorney Holder D M Agarwal

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Mallikarjun Gangadharappa Ankalkote and Another v. M/S Goyal Trading Company through Power of Attorney Holder D M Agarwal

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