Delhi High Court
M/S Ambuj Hotel & Real Estate (P) ... vs Indian Railway Catering & Tourism ... on 16 October, 2019
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16.10.2019
+ FAO(OS) (COMM) 285/2019
M/S AMBUJ HOTEL & REAL ESTATE (P) LTD
.... Appellant
Through: Mr. Sanjeev Sahay, Mr. Sulalit
Singh Sisodia, Mr. Archit
Kumar & Mr.Jhum Jhum
Sarkar, Advs.
Mr. Rajiv Ranjan Mishra, Adv.
for applicant.
versus
INDIAN RAILWAY CATERING & TOURISM CORP LTD
.....Respondent
Through: Mr. Nikhil Majithia, Standing
Counsel.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
G.S.SISTANI, J. (ORAL)
CM APPL. No. 43506-43507/2019 (exemptions)
Exemptions allowed, subject to all just exceptions.
The applications stand disposed of.
FAO(OS) (COMM) 285/2019 page 1 of 5
CM APPL. No. 43508/2019 (condonation of delay)
This is an application seeking condonation of 302 days delay in
filing the present appeal.
Mr. Sanjeev Sahay, learned counsel appearing for the appellant
submits that the delay in filing of the appeal is on account of cogent
reasons and unforeseen circumstances and not on account of any
negligence or inaction on the part of the appellant.
In the application seeking condonation of delay, the following
material averments have been made by the appellant/applicant :
"3. That the earlier counsel Mr. Pradeep Ranjan Tiwari
engaged in this matter expired during the pendency and
the counsel namely Prafulla Tiwary, appeared on behalf
of the petitioner was actually engaged by him and was
not in direct contact with the present applicant, and thus
the confusion arose between the earlier counsel and the
applicant.
4. That the applicant anyhow contacted the new counsel
after several attempts regarding the information about his
case on which the new counsel gave him false assurances
that they are looking after his matter and will be filing
their vakalatnama after taking due authorization.
5. That the applicant tried to contact the new counsel on
many occasions for information regarding status of the
case and the date before this Hon'ble Court on which the
new counsel used to say that the matter has not been
listed yet, and he will inform accordingly once it is listed.
6. That since few months, the new counsel has not been in
the contact of the applicant as he is not responding to his
calls and messaging and has not updated the status of the
present case since past few months.
7. That being concerned about the said matter and in
order to clarify the status of our case, the applicant
consulted and engaged the present counsel few days ago
FAO(OS) (COMM) 285/2019 page 2 of 5
to get status of his case. That the present counsel
informed the applicant that the said matter has been
disposed off as the same was listed on 15.10.2018 and the
earlier engaged counsel did not argued on behalf of the
applicant stating the reason that he has no instructions
from the client.
8. That believing on the submission of the earlier counsel,
this Hon'ble Court proceeded with the matter and passed
the said judgment in favour of the respondent by setting
aside the Arbitral Award.
9. That sooner the applicant came to know, the same has
been moved before this Hon'ble Court and the good and
sufficient reasons stated hereinabove."
2. Counsel for the respondent on the other hand submits that the
application is not supported by any affidavit. He also submits that it is
becoming common practice to blame the counsel for delay in taking
timely steps. He submits that if required, he will obtain an affidavit
from the counsel who is being blamed for the delay, who has a
different story to tell.
3. We have heard learned counsel for the parties. We have also
examined the application seeking condonation of delay.
4. A careful reading of the entire application shows that the
application is vague and lacks any specifics and particulars. Not a
single date has been mentioned : as to when the earlier counsel
expired; or when new counsel was appointed ; nor is there any
reference to any correspondence between the applicant and the
counsel to bear-out the applicant's contentions.
5. The law in relation to seeking condonation of delay is well-
settled. First and foremost, the court is to be satisfied that the delay is
FAO(OS) (COMM) 285/2019 page 3 of 5
explained by cogent reasons ; and that the application is bona-fide. In
the present case, we are not convinced that the delay has occurred for
cogent reasons or that the application is bona fide.
6. In the case of P.K. Ramachandran vs. State of Kerala and
Another reported as (1997) 7 SCC 556, the Supreme Court has, in its
order dated 19.09.1997, held as under :
"3. It would be noticed from a perusal of the impugned order
that the court has not recorded any satisfaction that the
explanation for the delay was either reasonable or satisfactory,
which is an essential prerequisite to condonation of delay.
6. Law of limitation may harshly affect a particular party but it
has to be applied with all its rigour when the statute so
prescribes and the courts have no power to extend the period of
limitation on equitable grounds. The discretion exercised by the
High Court was, thus, neither proper nor judicious. The order
condoning the delay cannot be sustained. This appeal,
therefore, succeeds and the impugned order is set aside.
Consequently, the application for condonation of delay filed in
the High Court would stand rejected and the miscellaneous first
appeal shall stand dismissed as barred by time. No costs."
7. Even otherwise this appeal arises under the Commercial Courts
Act, 2018 where very strict statutory timelines are laid down for
compliance, which do not give much leeway for condoning delay,
especially where the Court is not satisfied as to the cogency of the
reasons cited for the delay.
8. In addition, we find that while the entire delay has been sought
to be placed at the advocates' doorstep, no action has been
FAO(OS) (COMM) 285/2019 page 4 of 5
initiated by the petitioner against any of the advocates before the Bar
Council.
9. It is also relevant to notice that the appellant in the present case
is a private limited company and not an individual litigant ; which
company, it would be reasonable to suppose, would have a legal
department or at least a group of individuals managing their legal
affairs, which makes it even more un-believable that such inordinate
delay was occasioned by reason of neglect on the part of the advocates
with no follow-up or diligence shown by any of the officers in-charge
of the legal affairs of the appellant company.
10. In this view of the matter, we are not inclined to condone the
delay in filing the present appeal.
11. Accordingly, the application for condonation of delay, and
consequently the appeal itself, stand dismissed.
12. Pending applications, if any, are also dismissed.
G.S.SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
OCTOBER 16, 2019/uj
FAO(OS) (COMM) 285/2019 page 5 of 5
