Gujarat High Court
The United India Insurance ... vs Ajamalji N Vaghela on 22 February, 2021
Bench: Vaibhavi D. Nanavati
C/CA/2660/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2660 of 2020
In F/FIRST APPEAL NO. 24165 of 2020
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THE UNITED INDIA INSURANCE COMPANY LIMITED
Versus
AJAMALJI N VAGHELA
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Appearance:
MR VIBHUTI NANAVATI(513) for the Applicant(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 2,3,4,5,6
RULE SERVED(64) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/02/2021
ORAL ORDER
Heard learned advocate Mr.Vibhuti Nanavati for the applicant.
Though served, none appears for the respondent no.1.
This application is filed for condoning the delay of 860 days
occurred in filing First Appeal.
Learned advocate appearing for the applicant-Insurance Company
has stated that the affidavit filed explaining the delay before the tribunal.
He has stated that on 01.12.201 Notice of MACP was served to the office
of the applicant at Palanpur and thereafter, the Palanpur Office has
forwarded the notice and case papers to its TP HUB situated at Mehsana
on 07.12.2015. He has stated that on 16.02.2016, TP Office Mehsana
appointed the panel advocate to defend the matter and also forwarded the
notice, case papers and Vakalatnama along with the letter. He has stated
that on 19.03.2018, the Palanpur Office has forwarded the notice of
C/CA/2660/2020 ORDER
Execution Petition No.5 of 2018 received from the MACT Deesa to the
TP HUB Mehsana to take appropriate action in the matter. He has stated
that on 23.03.2018, the TP HUB Mehsana forwarded papers to the
advocate to appear on behalf of the insurance company in execution
petition and it has also informed that he has not sent the certified copy of
the judgment and award dated 09.08.2017 of MACP. He has stated that
on 07.08.2020, the advocate has forwarded the certified copy of the
judgment and award to the TP HUB Mehsana along with his letter dated
05.08.2020 wherein he has regret his mistake of non-filing of appearing
in the main matter and also informed that due to bonafide mistake on his
part, he has forgot to file appearance in the matter to defend the matter on
behalf of the insurance company and on the same day, the TP HUB
Mehsana sent the entire claim file to its Regional Office Ahmedabad for
necessary action in the matter. He has stated that on 31.08.2020, the
Regional Office Ahmedabad has forwarded the matter to advocate of the
High Court for opinion, which was received by the advocate on
31.08.2020. He has stated that on 02.09.2020, the advocate has opined to
prefer first appeal before the High Court with an application for
condonation of delay along with an affidavit of the advocate. He has
stated that on 04.09.2020, the applicant has instructed the advocate to file
first appeal since it has fair chance of success in the appeal. He has stated
that the delay has been caused due to inaction on the part of the advocate.
Learned advocate Mr.Vibhuti Nanavati has stated that the subject
matter was proceeded ex-parte due to inaction and bonafide mistake on
the part of its panel advocate. He has placed reliance on the judgment of
the Gujarat High Court in the case of Kishorekumar Vallabhdasni Co.
V/s. Lalitaben Hiralal Thakkar, 2002 (1) G.L.H. (U.J.) 2 and the
judgment of the Apex Court in the case of N. Balakrishnan V/s. M.
Krishnamurthy, AIR 1998 SC 3222 and stated that the matter may be
remanded back to decide the legal liability issue of the opponent no.2.
C/CA/2660/2020 ORDER
Learned advocate Mr.Vibhuti Nanavati for the applicant has stated
that due to COVID-19 pandemic, the Government of India had declared
and imposed lockdown across the country and in lieu of the same, the
applicant was unable to carry out any office work. He has submitted that
the affidavit is filed stating that the delay has occurred because of bona
fide mistake of the learned advocate appearing before the learned tribunal
and the claim petition proceeded ex parte against the original opponent
no.2.
Learned advocate Mr.Vibhuti Nanavati for the applicant has stated
that the Apex Court vide its order dated 23.03.2020 in Suo Motu Writ
Petition (Civil) No.3 of 2020 has ordered that "to obviate such difficulties
and to ensure that lawyers/litigants do not have to come pnysically to file
such proceeds in respective Courts/Tribunals across the country including
this Court, it is hereby ordered that a period of limitation in all such
proceedings, irrespective of the limitation prescribed under the general
law or Special Laws whether condonable or not shall stand extended with
effect from 15th March, 2020 till further orders to be passed by this Court
in present proceedings". Thus, he has submitted that the present
application may be allowed.
Per contra, learned advocate Mr.Hiren Modi appearing for the
respondent nos.2 to 6 has vehemently opposed the present application and
has stated that the affidavit filed by the learned advocate for the
applicant-Insurance Company is not a ground for condonation of delay of
860 days and therefore, the same may not be considered.
The explanation rendered by the learned advocate for the applicant
deserves consideration.
C/CA/2660/2020 ORDER
Accordingly, the delay of 860 days occurred in filing First Appeal
is required to be condoned and the same is hereby condoned. The Civil
Application is allowed to the aforesaid extent. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J)
ABHISHEK
