Shri. Hanamanth Albal Dy. ... vs Shri. Abhijit Alias Abhiman ...
2021 Latest Caselaw 17857 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                      CIVIL APPLICATION NO.3801 OF 2016
                                      IN
                     FIRST APPEAL (ST.) NO.24410 OF 2015
                                     WITH
                      CIVIL APPLICATION NO.3229 OF 2018



    Shri Hanamanth Albal & Anr.                              ....     Applicants

            Vs.

    Shri. Abhijit alias Abhiman Tirsingh                     ....     Respondents
    More & Anr.


    Ms. Nilima C. Sarvagod i/by Onkar Warange for Applicant.
    Mr. Mahendra Agavekar a/w Shraddha Chavan for                                                    for
    Respondent No.1.

                                        Coram : MADHAV J. JAMDAR, J.

Date : 22ND DECEMBER, 2021

P.C.:

1. Heard Ms. Nilima Sarvagod, learned advocate

appearing for the Applicants and Mr. Mahendra Agavekar,

learned advocate appearing for Respondent No. 1.

2. This Civil Application is filed seeking condonation of

delay of 77 days in filing the appeal challenging the judgment

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and award dated 15th April, 2015 passed by the Commissioner of

Employees Compensation, Mahad.

3. It is the contention of Mr. Agavekar, learned counsel

appearing for Respondent No. 1 that the delay is not of 77 days

but much more. He submitted that as per Section 30 of the

Employees Compensation Act, 1923 (hereinafter referred to as

the "Act"), the period of limitation for an appeal under the said

Section is 60 days and no appeal by an employer under Clause

(a) of Section 30(1) of the said Act shall lie unless the

memorandum of appeal is accompanied by a certificate by the

Commissioner to the effect that the appellant has deposited

with him the amount payable under the order appealed against.

He submitted that the said amount was actually deposited on

31st July, 2017 and accordingly receipt dated 31 st July, 2017 has

been produced alongwith additional affidavit dated 27 th January,

2020, which has been tendered in this Court today. It is the

submission of Mr. Agavekar that for the purpose of limitation, it

has to be considered that the impugned judgment and award

dated 15th April, 2015 has been challenged on 31 st July, 2017

and therefore there is delay of about two years and 3½ months.

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4. On the other hand, Ms. Nilima Sarvagod submitted

that the First Appeal was lodged in this Court on 3 rd September,

2015. Thus, according to her, the delay is only of 77 days. She

submitted that the requirement that memorandum of appeal is

accompanied by a certificate by the Commissioner to the effect

that the appellant has deposited with him the amount payable

under the order appealed against is complied with subsequently

on 31st July, 2017. However, for the purpose of limitation, the

date of filing of appeal should be taken as 3 rd September, 2015.

In the additional affidavit dated 27 th January, 2020, which has

been tendered today before the Court, the applicants have

explained that during the relevant time, the Advocate for the

applicants have undergone surgery and he was advised

complete bed rest and therefore the advocate was not in a

position to guide the applicants about the requirement of

depositing the amount of compensation before the trial Court

and the same is mandatory requirement. It is further stated in

the affidavit that as soon as the applicants' came to know that

the mandatory provision of depositing of the compensation

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amount before the trial Court was not followed, the steps were

taken and entire decretal amount alongwith interest was

deposited in the trial Court on 31st July, 2017. She submitted

that not complying with the said mandatory provision, is not

intentional and therefore, delay be condoned.

5. It is admitted position that the impugned judgment

and award is dated 15th April, 2015. The present appeal is

lodged in this Court on 3rd September, 2015. On 31 st July, 2017,

the entire decretal amount was deposited in the trial Court and

accordingly receipt dated 31st July, 2017 was issued. It is also

admitted position that the said entire decretal amount as

deposited by the applicants is withdrawn by the Respondents.

6. In these circumstances, I am not going into the issue

of the length of delay. The delay may be of 77 days or much

more, the reasons set out in the additional affidavit that the

learned Advocate appearing for the applicants had undergone

surgery and was not in a position to guide the applicants is not

denied by Respondent No. 1, who is the contesting Respondent.

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The contents of the additional affidavit although have been

served on the Advocate appearing for Respondent No. 1 earlier

have not been controverted. In these circumstances, I am

inclined to grant the Civil Application for condonation of delay.

7. The Civil Application is allowed and disposed of as

such.

( MADHAV J. JAMDAR, J. )