Bombay High Court
Sarda Transport, Adilabad ... vs United India Insurance Company ... on 17 November, 2017
Bench: V.M. Deshpande
1 cas1349.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION NO.1349/2017 IN
SECOND APPEAL ST. NO.24418/2017
Sarda Transport through its Proprietor Kamalkishor Ramprasad Sarda .vs.
United India Insurance Company Ltd. & anr.
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. Alok Daga, Advocate for applicant.
CORAM : V.M. DESHPANDE, J.
DATED : NOVEMBER 17, 2017
1. This is an application for condonation of delay
in filing the second appeal. Delay caused is of 370 days.
2. Heard Mr. Daga, learned counsel for the
applicant. The applicant is original defendant. The
original plaintiff is non applicant no.1-United India
Insurance Company Ltd., a subsidiary of General
Insurance Company of India, having its divisional office at
Old Cotton Market, Rajasthan Press Building, Akola and
non applicant no.2 is plaintiff no.2-M/s Omprakash
Shivprakash, through its partner Prakash Kaluram
Agrawal. A suit for recovery was filed against the present
applicant. The suit was contested by the present applicant
on various grounds. After examining the witnesses by the
plaintiff, the learned trial Court partly decreed the suit for
recovery against the present applicant. By the said decree,
2 cas1349.17.odt
the learned trial Court ordered that the plaintiff no.1 is
entitled to recover the amount of Rs.4,05,915/- along with
interest at 10% p.a. from 19.08.1996 till the filing of the
suit. The future interest at the rate of 6% per annum was
also granted in favour of the plaintiff from the date of
filing of the suit till its full realization. Being dissatisfied
with the said judgment and decree, the present applicant
filed Regular Civil Appeal No.116/2012 and the learned
Principal District Judge, Akola on 22.07.2016 dismissed
the appeal with costs.
3. To challenge the said judgment and decree, it
was expected from the applicant to file an appeal within
the stipulated period. However, the appeal was not filed
within the stipulated period therefore at the time of
presentation of the appeal, an application for condonation
of delay is filed. According to the application and
submission of Mr. Daga, learned counsel for the applicant,
after the judgment and decree passed by the appellate
Court on 22.07.2016, the present applicant contacted his
counsel who appeared in the regular civil appeal and he
informed the applicant that now nothing is required to be
done. Believing his advice, the applicant has not taken
any steps. It is also stated in the application and also it is
the submission of the learned counsel for the applicant
that on 09.11.2017, the bailiff had come to the office of
the applicant for attachment and thereafter the present
second appeal is filed.
3 cas1349.17.odt
4. The application for condoantion for delay is as
vague as it could be. The applicant has not stated as to
when he has contacted his counsel and when the counsel
has given advise to him not to prefer an appeal. Further,
there is no affidavit of the said advocate who gave the
advise not to file an appeal.
It is normally not believable that an advocate
will give such an advise to his client not to file an appeal
before the higher forum when the decision is given against
his client.
5. Further, the present applicant is not a layman.
He is a businessman and runs a transport company.
Therefore, it is really unbelievable that a businessman
who understands the intricacies of the day-to-day life will
readily and blindly accept such an advise and on his
advise choose not to prefer an appeal, keep mum and
remain silent till the bailiff comes to his office for
attachment of his property.
6. Further, even according to the application and
as per the submission of the counsel for the applicant,
when the bailiff had come to the office of the applicant,
that time the applicant has issued cheque of Rs.9,80,313/-
dated 09.11.2017. However, it is the submission and
assertion in the application that at the time of issuance of
said cheque, no sufficient amount was available in his
bank account. This particular aspect shows that the
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present applicant is not a bona fide litigant. He, only to
avoid the course of law, has issued a cheque to the bailiff
who had come to his office for attachment of the property,
knowing fully well that he is not having any amount in his
bank account and still had issued the cheque. This type of
attitude on the part of the applicant is nothing but to
obstruct the course of justice. The applicant, it appears
that on 15.11.2017 has filed the present appeal and
application. Thus, the issuance of the cheque was not
with a bona fide intention but it was with a view to dodge
the process of law. Surely, these types of litigants are not
entitled to any discretionary relief especially when the
applicant is not a layman and is a businessman.
7. No case is made out for condonation of delay.
Hence the present application for condoantion of delay is
dismissed with costs of Rs.10,000/-. Consequently
registration of the second appeal is refused.
The applicant to deposit costs of Rs.10,000/.-
within two weeks from today else the Collector, Adilabad,
Andhra Pradesh is directed to recover the said amount of
costs as arrears of land revenue after following the process
of law and submit the report to this Court.
JUDGE
kahale
