M/S Brakes International vs Forward Auto Industries
2010 Latest Caselaw 2797 Del

                                                        UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                  FAO No.43/1998

                                         Date of Decision: May 26, 2010


       M/S BRAKES INTERNATIONAL                  ..... Appellant
                     through Mr. Sanjeev Sindhwani, Advocate
                     with Mr. Manav Kumar, Mr. P.C.Arya and
                     Mr. Gautam, Advocates

                         versus


       FORWARD AUTO INDUSTRIES              ..... Respondent
                   through Mr. Mahir Malhotra, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

C.M. No.10343/2008 & 10344/2008

These are two applications by the appellant; one under Order 41

Rule 17 read with Section 151 of the Code of Civil Procedure for

restoration of the appeal which was dismissed in default on

February 18, 2008 and, the other for condonation of delay in filing the

application for restoration.

The application for restoration of the appeal was filed on

June 30, 2008 along with the application for condonation of delay. It

is stated in the application for restoration that on February 18, 2008

in FAO No.43/1998 on which date the appeal was listed for hearing, the learned counsel

for the appellant was present in the Court waiting for his turn but in

the meanwhile, he got a call from another Court where he got busy

with the result that when the present appeal was actually called, he

was unable to appear. Consequently, as noticed above, the appeal

was dismissed in default.

As regards the delay in filing the application for restoration, the

appellant has placed on record two affidavits, one of Shri Tirlok

Kumar Arora who is one of the partners of the appellant-firm as well

as of the present counsel representing it. As per these affidavits, after

the appeal was dismissed in default, the previous counsel who was

conducting the case on behalf of the appellant could not contact the

appellant because its telephone numbers had changed and in the

meanwhile, the counsel got elevated to this Court. The present

counsel, who took over the briefs of the previous counsel, was not

aware of the dismissal of the appeal in default and came to know of

the same only while he was going through the files in the month of

June, 2008. The counsel then contacted the counsel who has been

conducting the cases of the appellant in the District Courts and

obtained from him its telephone numbers. It was thereafter that the

applications for restoration and for condonation of delay were filed.

No reply to the application for restoration was filed. However,

reply to the application for condonation was filed. The respondent

though has opposed the application for condonation of delay but no

specific reply has been given to the averments made in the application

and to the affidavits referred to hereinabove. The learned counsel,

in FAO No.43/1998 who is today appearing for the counsel for the respondent, has prayed

for an adjournment on the ground that the counsel who has to argue

the matter is out of India. This, I feel, is no ground to adjourn the

matter. In any case, having regard to the facts and circumstances

explained in the applications as well as in the affidavits filed by one of

the partners of the appellant-firm and its counsel, I deem it proper to

condone the delay in filing the application for restoration of the

appeal. I am of the view that the non-appearance on the part of the

appellant on February 18, 2008 was bonafide and not intentional.

Accordingly, the applications are allowed. The appeal consequently is

restored to its original number.

The interim order as passed on February 04, 1998 is revived.

The applications are disposed of.

FAO No.43/1998

List the appeal for hearing in the category of "Regular Matters"

as per the year of its seniority.

REKHA SHARMA, J.

MAY 26, 2010 ka

in FAO No.43/1998