Vodafone Mobile Services Limited vs Bhoopender Singh
2017 Latest Caselaw 5145 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RFA Nos.798/2017 & 799/2017

%                                              18th September, 2017

1.    RFA No.798/2017

VODAFONE MOBILE SERVICES LIMITED         ..... Appellant
                 Through: Mr. Tarun Sharma, Advocate
                          with Ms. Aakansha Kapoor,
                          Advocate.
                 versus

BHOOPENDER SINGH                                    ..... Respondent

2.    RFA No. 799/2017

VODAFONE MOBILE SERVICES LIMITED        ..... Appellant
                 Through: Mr. Tarun Sharma, Advocate
                          with Ms. Aakansha Kapoor,
                          Advocate.
                 versus

BHOOPENDRA SINGH                                    ..... Respondent

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.34247/2017 (for condonation of delay of 527 days) in
RFA No.798/2017

1.           By the impugned judgment, the trial court has decreed the

suit for a sum of Rs.3,15,226/- along with interest at 12% per annum



RFA Nos.798/2017 & 799/2017                                 Page 1 of 6
 on account of work which the respondent/plaintiff is said to have done

for the appellant/defendant with respect to communication lines laid

down for Meerut-Shamli OFC route.


2.           No doubt, delay is condoned liberally by courts. Also

courts are liberal in condoning the delay because rights of parties

should not ordinarily be defeated on account of delay. Supreme Court

has therefore observed and held in the judgment in the case of N.

Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222 that there is

no vested right in filing an appeal with delay and delay must ordinarily

be condoned unless the delay is on account of gross/grave negligence.


3.           Let us examine the facts of the present case whether

delay should be condoned.


4.           At the outset, it is to be noted that appellant is not some

small citizen having limited financial means or infrastructure but the

appellant is a gigantic multinational company being a company which

is part of international chain of the telecommunications giant

Vodafone. When condonation of delay is applied by such companies

they would not have equities similar to a small citizen who lacks




RFA Nos.798/2017 & 799/2017                                  Page 2 of 6
 financial means or other common citizens. Also, though every day of

delay has not to be explained, and sufficient cause must cover the

general period of delay, sufficient cause has to be however sufficient

cause i.e something which effectively more or less stopped the filing

of the appeal or prevented the filing of the appeal.                There is a

difference between the reasons constituting sufficient cause and facts

as to how the period of delay has been explained. All facts do not

constitute sufficient cause.


5.            In the present case, the facts pleaded do not constitute

sufficient cause will become clear from paras 5 and 6 of the present

application and these paras read as under:-

     "5.      It is most respectfully submitted herein that the Appellant has not
     been able to present the said Regular First Appeal within the prescribed
     Period of Limitation of Ninety Days as has been provided in the Article-
     116(a) of the Limitation Act, 1963. However, the Appellant intends to
     make out a "Sufficient Cause" for seeking the Relief to condone the delay of
     527 days in filing the Regular First Appeal. The Explanation to constitute
     "Sufficient Cause" is being explained herein under on the basis of the Facts

submitted in the Table herein below: S. No. PERIOD OF DAYS SUFFICIENT CAUSE

1. 02.04.2016 UPTO OFFICER IN-CHARGE NAMELY ANUJ 24.07.2016 KUMAR SINGH HAD JOINED THE 113 DAYS UTTAR PRADESH WEST CIRCLE OF THE APPELLANT COMPANY ON 20.10.2015.

THEREAFTER, THE SAID OFFICER WAS RELIEVED FROM THE UTTAR PRADESH WEST CIRCLE OF THE APPELLANT COMPANY ON 24.07.2016.

NO INFORMATION WAS MADE

AVAILABLE TO THE DECISION MAKING TOP MANAGEMENT OF THE IMPUGNED JUDGMENT & DECREE PASSED ON 02.04.2016.

2. 25.07.2016 UPTO NEW OFFICER IN-CHARGE NAMELY 05.09.2017 ANKIT DIXIT HAD JOINED THE UTTAR 408 DAYS PRADESH WEST CIRCLE OF THE APPELLANT COMPANY ON 16.08.2016.

SUMMONS OF THE EXECUTION PETITION WERE RECEIVED BY THE APPELLANT COMPANY ON 25.08.2017 THEREAFTER, WITHOUT WASTING ANY TIME THE INCUMBENT OFFICER, ANKIT DIXIT, IMMEDIATELY STARTED TRACING THE OLD RECORD OF THE CIVIL SUIT.

HOWEVER, NO DOCUMENT COULD BE FOUND IN THE OFFICE PREMISES FOR THE REASON THAT DURING THE SHIFTING OF THE REGISTERED OFFICE BY THE APPELLANT COMPANY FROM DELHI TO BOMBAY ON 10.06.2017 MOST OF THE OLD RECORD FILES GOT UNTRACEABLE.

THEREFORE, THE CERTIFIED COPY OF THE COMPLETE CIVIL SUIT PAPER BOOK WAS APPLIED ON 06.09.2017

3. 06.09.2017 UPTO CERTIFIED COPY APPLIED ON 06.09.2017 11.09.2017 6 DAYS

6. It is pertinent to mention herein that there was never any deliberate intention on the part of the Appellant Company to approach the Appellate Court beyond the statutory Period of Limitation. There was also neither any Negligence nor Latches in filing the Regular First Appeal, which can be made attributable to the Deponent herein. Further, there is also no lapse and inaction on the part of the Appellant Company. Therefore, this Hon‟ble Court in the Interest of Justice may kindly be pleased to adopt a liberal construction to the term "Sufficient Cause" to condone the bonafide delay of 527 Days in filing the Regular First Appeal. The Appellant Company would lose a Valuable Right to impugn the Judgment & Decree passed on 02.04.2016 if the present meritorious Appeal is not considered on merit."

6. A reading of the aforesaid paras shows that one delay of

113 days is sought to be explained by stating that the officer in-charge

did not make any information available. Delay of the further period of

408 days is sought to be explained on account of a new officer joining

and certain documents being not traceable allegedly being „old record‟

i.e the record of the present suit. Certified copy was thereafter applied

for on 6.9.2017 and whereafter this appeal came to be filed on

11.9.2017. As already stated above, statement of facts are different

than the facts which constitute sufficient cause. In the opinion of this

Court the facts which are stated in chart in para 5 of the application

show a clear case of gross negligence. Gross negligence cannot be

condoned because courts cannot overlook the fact that after expiry of

period of limitation vested rights have accrued in favour of the other

side, more so in the facts of the present case since the appellant in

question will not be entitled to any extraordinary leeway for

condonation of delay.

7. In view of the above discussion, I do not find any reason

for constituting sufficient cause for condonation of huge delay of 527

days in filing of the first appeal.

Application is accordingly dismissed.

RFA No.798/2017 and C.M. Nos. 34246/2017 (stay) & 34248/2017 (exemption)

8. Since the application for condonation of delay is

dismissed, the Regular First Appeal itself is dismissed and also the

connected applications.

C.M. No.34250/2017 (for condonation of delay) in RFA No.799/2017

9. The facts of the present case are more or less similar to

the facts narrated in RFA No.798/2017 except that the delay in this

case is of 510 days.

For the reasons already given while dismissing C.M.

No.34247/2017 for condonation of delay in RFA No.798/2017, and

which reasoning is adopted for disposal of the present application, this

C.M. is also dismissed.

RFA No.799/2017 and C.M. Nos. 34249/2017 (stay) & 34251/2017

(exemption)

10. Since the C.M. No.34250/2017 for condonation of delay

is dismissed, the Regular First Appeal and C.M. No. 34249/2017 and

are dismissed.

SEPTEMBER 18, 2017/ Ne VALMIKI J. MEHTA, J