Delhi High Court
Sanju Kumar Prasad vs British Motor Car Co Ltd on 25 November, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.F.A. No.18/2009
% Judgment Reserved On: 15.11.2010
Judgment Delivered On: 25.11.2010
SANJU KUMAR PRASAD .... Petitioner
Through: Shailender Dahiya, Advocate
Versus
BRITISH MOTOR CAR CO. LTD. .... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be No
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in the No
Digest?
MOOL CHAND GARG,J.
*
CM No.18030/2009 (for condonation of delay)
1. This is an application filed by the appellant under Section 5 of the
Limitation Act for condoning the delay in filing the present appeal. The
impugned order was passed on 25.05.2009 and the limitation for filing the
appeal was expired on 23.8.2009. The appellant had applied for the
certified copy of the impugned order on 15.07.2009 and the same was
delivered to him on 17.07.2009, thus the appellant was entitled for
extension of three days i.e. upto 26.08.2009. However, this appeal was
filed on 07.12.2009.
2. The reasons given by the appellant for condoning the delay are as
follows:-
"4. That on 07.08.2009 the respondent was
directed to return the amount of ` 1,65,000/- along
with interest @ 6% p.a. to the petitioner/appellant in
the execution and the next date of 28.08.2009 was
fixed and the petitioner/appellant was still hopeful
that the respondent would compromise the matter as
per earlier settlement with the petitioner/appellant
instead of returning the money, and as such the
petitioner/appellant waited for the response instead
of filing the appeal against the impugned order as he
was also conscious about financial constrains
involved in filing the present appeal. But the
respondent returned the money on 28.08.2009 and it
came apparent that there would be no settlement with
the respondent.
5. That the applicant went to Agra four times from
29.08.2009 till 07.09.2009 and stayed there for two
days on each visit for management of an event which
was to be held from 13.09.2009 and therefore, the
applicant could not contact his counsel in person and
therefore, the applicant met his counsel on 08th
September and instructed him to file the petition, but
in the evening of 08th September, 2009, the counsel‟s
daughter fell sick and she was diagnosed as suffering
from swine flu and when the daughter was sick even
his son got admitted in hospital on 13th September,
2009 and he was diagnosed as a case of swine flu and
during this period from 08th to 25th September, 2009
could not spare time for filing the appeal due to
sickness of his children and other household
commitments. The applicant‟s counsel finally
prepared the petition under Article 227 of the
Constitution of India during the vacation from 26th to
28th September, 2009 and it was ready to be filed on
30th September but could not be filed as the Hon‟ble
High Court was closed upto 04th October, 2009 due to
the vacations.
6. That subsequently the petition under Article
227 of the Constitution of India was filed on
05.10.2009 as per filing No. 155338 but there were
some objections and the said petition was re-filed
after removing objections on 12.10.2009 and it was
finally listed before the Hon‟ble court on 20.10.2009
and the petition was dismissed as withdrawn with
liberty to file an appeal under Order XXI Rule 58 by
the Hon‟ble Court of Justice Rajiv Sahay Endlaw, as
per order dated 20.10.2009."
3. No document to prove the illness of the daughter of counsel for the
appellant or to prove appellant‟s visit to Agra from 29.08.2009 to
07.09.2009 have been filed on record. Admittedly, the appellant has also
filed a petition under Article 227 of the Constitution of India much
belatedly, which was dismissed as withdrawn vide orders dated 20.10.2009
passed by Justice R.S.Endlaw. The appellant has also not placed on
record the copy of the order passed by Justice R.S.Endlaw to support his
plea that liberty was granted to the appellant to file this appeal saving the
right of limitation.
4. Many a times the merits of the case also becomes a ground to
condone the delay. However, in this case the appellant claims to have
purchased the property from Sushma Kapoor in terms of agreement to sell
dated 31.03.2006 and the said Sushma Kapoor is stated to have
purchased the property in question from Sudha Sori vide agreement to sell
dated 1.2.2006, whose objections to the decree, which is now sought to be
set aside by the appellant in his objections, were dismissed by the learned
Predecessor of the court below vide order dated 20.02.2007. It is, therefore,
apparent that the litigation which is being continued starting from Krishna
Devi till the present appellant is nothing else but an abuse of process of
court and thus, calls for no interference or discretion of this Court in
condoning the delay.
5. In these circumstances, the application for condonation of delay in
fling the appeal is dismissed.
Ex.F.A.No.18/2009
In view of the orders passed in CM No. 18030/2009, the Execution
First Appeal also stands dismissed.
CM No. 18029/2009
Interim order, if any, stands vacated.
Application stands disposed of.
MOOL CHAND GARG,J
NOVEMBER 25, 2010
„dc‟
