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Calcutta High Court
Arcl Organics Limited vs Tara Properties Pvt.Ltd on 7 January, 2026
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
OD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
IA NO. GA/6/2025
In APD/45/2019
ARCL ORGANICS LIMITED
Vs
TARA PROPERTIES PVT.LTD.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
And
The Hon'ble JUSTICE SUPRATIM BHATTACHARYA
Date:7th January, 2026.
APPEARANCE:
Mr. Sakya Sen, Sr. Adv.
Mr. SourojitSengupta, Adv.
Mr. Aasish Choudhury, Adv.
Mrs. Uma Baparee, Adv.
..for the appellant.
Mr. SurajitNathMitra, Sr. Adv.
Mr. AniruddhaMitra, Sr. Adv.
Mr. DebrajSahu, Adv.
Ms. Sormi Dutta, Adv.
..for the respondent.
1. The present application for restoration on condonation of delay has
been filed on August 02, 2025, whereas the appeal was dismissed
for default on February 07, 2020.
2. Learned senior counsel appearing for the appellant places reliance
on the averments made in restoration application to submit that
there was no mala fides on the part of the appellant company at
any point of time, thereby justifying a lenient approach to be taken
by this Court in condoning the delay in filing the application.
3. It is contended that one Ms. SonaliChaubey, the then Company
Secretary of the appellant company who was handling the litigation
on behalf of the company, had left the services of the company.
4. It is pointed out although in the restoration application, it was
mentioned that the said Company Secretary had left the company
in or about September, 2020,after the incorrectness of the said
statement was pointed out in the affidavit in opposition by the
respondent, apology has been sought in the affidavit in
reply,admitting that the said date was erroneously mentioned,
whereas the Company Secretary had left long after, in the month of
December, 2021.
5. Be that as it may, it is submitted by learned senior counsel that
during the regime of the said Company Secretary, the appeal got
dismissed for default. Only much subsequently, after the erstwhile
learned advocate for the appellant intimated the appellant-
company that the appeal had been dismissed for default and the
impugned decree had been put into execution and in connection
therewith an attachment order was passed by the executing court,
did the appellant learn about such dismissal for default and
immediately engaged a new advocate who, upon taking
information, came to know about such dismissal and the
surrounding circumstances.
6. Learned senior counsel appearing for the appellant cites a decision
reported at 1998 (7) SCC 123[N. BalakrishnanVersus M.
Krishnamurthy], in support of proposition of that length of delay is
immaterial in condonation of delay, whereas acceptability of the
explanation is the only criterion.
7. It is further submitted that the Hon'ble Supreme Court held in the
said report that if the explanation given for the delay does not
smack of mala fide or does not put forth as part of a dilatory
strategy, the court must show utmost consideration to the suitor.
8. Learned senior counsel submits further that no advantage could
have been derived by the appellant from the delay occasioned in
preferring the instant application for restoration since, in the
meantime, the possession of the decretal property had been
handed over by the appellant in favour of the decree-holder/
respondent on or about February 09, 2021.
9. It is candidly submitted by learned senior counsel for the appellant
that the appellant had failed to comply with the condition imposed
for grant of stay vide order dated August 28, 2019 by non-payment
of occupation charges. However, it is insinuated that such non-
compliance was due to the loss of business and stringent financial
conditionsundergone by the appellant-company at the relevant
point of time.
10. Learned senior counsel appearing for the appellant places reliance
on the annexures to the application for restoration to indicate that
the knowledge was derived regarding dismissal of the appeal for
default only on July 01, 2025, soon after which the present
application was filed.
11. Learned senior counsel appearing for the respondent opposes the
prayer for restoration and condonation of delay in making the said
application.
12. Learned senior counsel places reliance on the judgmentreported at
2010 (8) SCC685 [Balwant Singh (Dead) Versus Jagdish Singh And
Others],wherein the Hon'ble Supreme Court, inter alia, had
observed that the explanation of delay should clearly be
understood in contradistinctionwith inordinate unexplained delay.
Delay, it was held, is just one of the ingredients which have to be
considered by the Court. In addition to it, the Court must also take
into account the conduct of the parties, bona fide reasons for
condonation of delay and whether such delay could easily be
avoided by the applicant acting with normal care and caution. The
statutory provisions, it was observed, mandate that an application
for condonation of delay and application belatedly filed beyond the
prescribed period of limitation for bringing legal representatives on
record (in that case) should be rejected unless sufficient cause is
shown for condonation of delay.
13. Learned senior counsel appearing for the respondent further cites
the judgmentreported at (2013) 14 SCC 81 [Basawaraj And
Another Versus Special Land Acquisition Officer with Civil Appeal
No. 6975 of 2013, Basawaraj And Others Versus Special Land
Acquisition Officer],where the Hon'ble Supreme Court had
observed, inter alia, that it is a settled legal proposition that the
law of limitation may harshly affect a particular party but it has to
be applied for all its rigourwhen the statute so prescribes. The
Court has no power to extendthe period of limitation on equitable
ground. A result flowing from a statutory provision is never an
evil, the Hon'ble Supreme Court went on to observe, and the Court
has no power to ignore that provision to relieve what it considers a
distress resulting from its operation. The statutory provision may
cause hardship or inconvenience to a particular party but the
Court has no choice to enforce it with full effect of the same. The
Hon'ble Supreme Court, in the said judgment, deprecated
equitable considerations in condonation of delay.
14. Learned senior counsel appearing for the respondent then takes
the Court through the annexures to the affidavit in opposition
wherefrom it is evident that inAnnual Audit Reports filed by the
appellant-company much subsequent to the dismissal of the
appeal for default, the same Company Secretaryas named in the
restoration application has been consistently shown to continue in
such capacity vis-à-vis the appellant-company. Only on December
7, 2021 was the said Company Secretary, namely,SonaliChaubey
shown to have resigned from the company in one of the annual
reports.
15. Thus, it is argued that the very premise of the restoration
application, being that the appellant was in a difficult position vis-
à-vis the litigation due to the erstwhile Company Secretary having
demitted office, is vitiated by mala fides.
16. That apart, learned senior counsel for the respondents points out
that it will be evident from the order sheet of the execution case
that the so-called "erstwhile" advocate of the respondent had
consistently appeared much after the dismissal of the appeal for
default, even in connection with the execution case, obviously on
instruction of the appellant-company, since notice of execution
was served on the appellant-company itself and not the said
learned advocate. Without the specific instruction of the appellant-
company, the said learned advocate, it is submitted, could not
have appeared. Even otherwise, the same learned Advocate, whose
name appears as one of the counsel appearing on behalf of the
appellant-company all throughout, was also indicated in the
Annual AuditReports of the company as one of the advocates for
the appellant-company.
17. Thus, the allegation of the appellant-company in its restoration
applicationthat it had changed its advocate, whichmight have
created confusion as to the knowledge about dismissal of the
appeal for default, is also based on falsehood.
18. Learned senior counsel takes the Court through the pleadings in
the affidavit in opposition and submits that the very basis of the
restoration application being mala fide, the same ought to be
dismissed. It is also pointed out in the passing, in reply to the
contention of the appellant that the appellant had secured the
decretal amount, that the deposited amount was only to the tune
of Rs. 5 crore, whereas the decretal amount is about Rs. 25 crore.
19. Upon having carefully considered the arguments of the parties, we
find patent mala fides in the making of the restoration application.
Contrary to the arguments of the appellant, we find that the very
basis of the pleadings made in the restoration application is an
attempt to mislead the Court.
20. First, in paragraph no. 13 of the application, it has been stated
that the "aforesaid matter" (the appeal) was, at that relevant point
of time, being entirely handled by Ms. SonaliChaubey, the then
Company Secretary of the appellant, who left the service of the
company in or about September, 2020.
21. It has been repeated in paragraph no. 15 of the application that as
the matter was also being handled by the said erstwhile Company
Secretary,who had left the appellant-company on September,
2020, the new incumbent had no occasion to enquire and
ascertain the status of the appeal.
22. However, since we find from the records that the said erstwhile
Company Secretary resigned much later, only on December 7,
2021, the reason for the delay during the period between the
dismissal for default of the appeal on February 7, 2020 and
December 7, 2021 remains unexplained even as per the averments
made in the restoration application.
23. Also,in respect of the averment made in the restoration application
that the erstwhile learned advocate had been changed in the
meantime, we find the same not to be correct, since the name of
the learned advocate who appeared for the appellant all along,
from prior to the dismissal of the appeal, appears consistently in
the execution case as well.
24. It is not quite credible that a learned advocate whose services were
dispensed with in the year 2020 would be charitable enough to
appear of his own for the appellant-company five years thereafter
in the execution case, without any specific instruction in that
regard from the appellant.
25. Thus, the very premise of the subsequent date of knowledge of
dismissal of the appeal, that is, from the attachment order passed
in the connected execution case when such advocate came to know
of the same and informed the company, is also far from the truth.
26. That apart, we do not find any iota of bona fidesor diligence in the
conduct of the appellant. Although past conduct may not be very
relevant for ascertaining the cause of absence on the date of
dismissal of a matter for default, the same cannot be totally
overlooked to assess the present conduct of the appellant as well.
27. The appeal itself was filed after a prolonged delay, which was
condoned and an order of stay was passed in favour of the
appellant at the outset, imposing occupation charges as condition
for such stay on August 28, 2019.
28. The appellant even failed to comply with such direction. Hence, the
handing over of possession of the suit premises by the appellant to
the respondent on February 9, 2021 was not an altruistic act on
the part of the appellant but out of compulsion, since the stay
order had automatically stood vacated by virtue of non-payment of
occupation charges, which was a condition for such stay and, in
any event, the appellant would have been evicted by due process of
law in the execution case.
29. Moreover, the argument of the appellant that no advantage could
be derived by the appellant by the delay cannot also be accepted. It
is only when the attachment order was passed on July 01, 2025
that, on the threat of such attachment, the present restoration
application was filed to stall such attachment.
30. We do not find any plausible explanation from the pleadings of the
appellant either in the restoration application or in the connected
affidavit-in-reply as to why the appellant, which is an independent
juristic entity, did not take any steps throughout the period of five
years for restoring the appeal.
31. It is well-known that when a particular employee of a company
demits office, she/heapprises the subsequent incumbent of the
tasks left unfinished by her. Hence, we do not find any plausibility
in the averment in the restoration application that merely due to
the previous Company Secretary, who was in charge of the
litigation, demitting office, the new Company Secretary was not in
the know of the appeal preferred by the company itself.
32. Thus, the proposition laid down in N. Balakrishnan
(supra)does not come to the aid of the appellant-company, in view
of the mala fide conduct on the part of the appellant/petitioner.
Moreover, in view of the ratio laid down in Prem Singh (supra) and
Balwant Singh (supra),we do not find any hesitation to hold with
the appellant, being guilty of mala fides and being grossly negligent
at all stages, is not entitled to the equitable relief of condonation of
the delay in filing the present restoration application.
33. Accordingly, GA/6/2025 is dismissed on contest
without any order as to costs.
(SABYASACHI BHATTACHARYYA, J.)
(SUPRATIM BHATTACHARYA, J)
Arsad
