Delhi High Court
Rajiv Jain & Anr vs Registrar Co-Operative & Ors on 23 October, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.10.2017
W.P. (C) 8073/2017
RAJIV JAIN & ANR ..... Petitioners
Through: Mr. Rajiv K. Nanda, Ms. Aastha Jain
and Mr. Sanjeev K. Balyan,
Advocates.
Versus
REGISTRAR CO-OPERATIVE & ORS ..... Respondents
Through Mr. Ramesh Singh, Standing
Counsel along with Mr. Sandeepan
Pathak, Advocate for respondent No.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA
SIDDHARTH MRIDUL, J (ORAL)
1. The present writ petition assails an order dated 23rd May, 2017,
rendered by the Delhi Co-operative Tribunal (hereinafter referred to as
'Tribunal') in Miscellaneous Application No. 03/2017 filed in Appeal No.
190/2008/DCT; whereby, an application analogous to Order XLI Rule 19
read with Section 151 Code of Civil Procedure, 1908, seeking restoration of
the appeal along with an application under Section 5 of the Limitation Act
for condonation of delay were dismissed.
2. Mr. Rajiv K. Nanda, learned counsel appearing on behalf of the
petitioner, would vehemently urge that although the application for
restoration, as above- stated, was filed about four and a half years from the
date of the order dismissing the proceedings; the delay was occasioned on
account of sufficient cause, inasmuch as, the petitioner acquired knowledge
of the said order only on 28th December, 2016, when purportedly a police
officer (unnamed) visited his premises (unspecified) with a warrant of arrest.
3. A plain reading of the order impugned in the present petition clearly
reveals as follows:-
(a) On 30th March, 2012, learned counsel for the petitioner
appeared before the Tribunal, when the matter came to be adjourned
on account of non-availability of the arbitration record to 7th May,
2012 at 11:30 a.m;
(b) On 7th May, 2012, there was no appearance on behalf of the
petitioner and the matter was further adjourned to 5th July, 2013 at
11:30 a.m for awaiting the said record from the office of Registrar Co-
operative Societies.
(c ) However the Tribunal, proceeding on the presumption that
there was a typographical error in the date fixed for the hearing of the
appeal, took the same up on 5th July, 2012, and dismissed the same in
default on account of non-appearance on behalf of the petitioner.
4. In view of the foregoing facts, it has been asserted on behalf of the
petitioner that his absence before the Tribunal on 5th July, 2012 was not
intentional but bonafide and beyond his control, and that in any event he had
been informed by his counsel in the proceedings that a fresh notice would be
issued as and when the record of the Arbitration was made available to the
Tribunal.
5. The Tribunal after observing that there had been no appearance on
behalf of the appellant, even on an earlier occasion, before the appeal came
to be dismissed on 5th July, 2012; and that neither any specific reason with
regard to the counsel, who had purportedly informed the petitioner qua the
issuance of fresh notice by the Tribunal subsequent upon the receipt of
Arbitrator's record nor any details of the warrant of arrest or the date on
which it had been issued or the police officer who had sought to execute it
having been furnished in the applications, there was no justification to
condone the delay in filing the application for restoration. The application
was accordingly dismissed as being hopelessly barred by limitation.
6. Needless to state, an application for restoration of appeal has to be
instituted within 30 days from the date of dismissal. In our view, the
submissions made on behalf of the petitioner, both before the Tribunal as
well as before this Court, do not disclose sufficient cause for restoration of
the appeal preferred by the petitioner on merits.
7. It would also be trite to state that the petitioner cannot be permitted to
awake from deep slumber belatedly.
8. In view of the foregoing, there is no merit in the present petition. The
present petition devoid of merits and accordingly dismissed.
SIDDHARTH MRIDUL, J
DEEPA SHARMA, J
OCTOBER 23, 2017
rs
