Punjab-Haryana High Court
Classic Ispat Pvt. Ltd. vs Janak Steel Tubes Ltd. on 26 March, 1998
Equivalent citations: [1998]93COMPCAS165(P&H), (1998)119PLR681
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT
G.S. Singhvi J.
1. Aggrieved by the order dated April 10, 1997, passed by the learned company judge on the petition filed by it under section 433(e) and 433(f) read with section 439 of the Companies Act, 1956 (for short "the Act"), the applicant has filed an appeal under section 483 of the Act. It has also filed Civil Miscellaneous Application No. 61 of 1997 under section 5 of the Limitation Act for condonation of the delay of 70 days.
2. We have heard Shri Anand Chibbar and Shri L. M. Suri and have perused the record. In the application filed for condonation of delay, it has been averred that the applicant inadvertently filed a Letters Patent appeal under clause x of the Letters Patent instead of filing an appeal under section 483 of the Act and after this error came to the applicant's notice in the third week of July, the present appeal was filed on August 11, 1997. In paragraph 4 of the application, it has been averred that the Letters Patent appeal was filed on July 1, 1997, on account of the bona fide and unintentional error on the part of counsel. It is suggested that counsel contacted the applicant's representative who was away in Delhi in connection with business and after return from Delhi on July 27, 1997, he contacted the, present advocate and gave instructions to him to file the appeal under the Companies Act. Thereafter, 10 days were consumed for preparation of the appeal. This application is supported by the affidavit of Shri Sandeep K. Aggarwal, director of the applicant-company.
3. Shri Anand Chibbar argued that the delay in the filing of the appeal is due to mistake of counsel and for such mistake the applicant should not be made to suffer. He submitted that the error committed by counsel was bona fide and not intentional and, therefore, the delay of 70 days in the filing of the appeal be condoned. Learned counsel relied on the decisions of the Supreme Court in Rafiq v. Munshilal, AIR 1981 SC 1400, and Collector, Land Acquisition v. Mst. Katiji [1987] 62 Comp Cas 370; AIR 1987 SC 1353.
4. In our opinion, the submission made by Shri Chibbar does not merit acceptance. No doubt, the judicial precedents of the recent past show that the courts have adopted a liberal approach in entertaining the application for condonation of delay and the old theory that every day's delay must be explained has been diluted to some extent. However, while deciding the prayer for condonation of delay, the court cannot ignore or give a go-by to the basic principle that the burden to prove the existence of sufficient cause is always upon the applicant and there is no presumption that the delay occasioned in the filing of the appeal, etc., is always bona fide and the court must in all cases condone the delay as a matter of course.
5. In paragraphs 2, 3 and 4 of the application filed by the applicant for condonation of delay as well as the affidavit filed by Shri Sandeep K. Aggarwal, which are in pari materia and on which Shri Chibbar has placed reliance, are extracted below :
"That the applicant upon receipt of certified copy of the order, inadvertently instead of filing appeal under section 483 of the Companies Act, filed an ordinary Letters Patent appeal under clause 10 of the Letters Patent on July 1, 1997, which was within the period of limitation period as described under the law.
That this error came to the notice of the applicant in the third week of July, 1997, when it received the petition back from the pad of the Additional Registrar raising objections that how Letters Patent appeal was competent in a company petition.
That the filing of the Letters Patent appeal on July 1, 1997, against the impugned order of the Hon'ble single judge within the limitation period of 30 days is on account of bona fide error on the part of counsel which is unintentional. Counsel thereafter contacted the applicant who was away in Delhi in connection with his business. Upon his return on July 27, 1997, he contacted his advocate and gave instructions to file fresh appeal under the Companies Act. A period of about ten days was consumed thereafter in preparing the company appeal and on account of this reason, it could be filed only on August 11, 1997, thereby causing a delay of 70 days."
"1. That the deponent has filed the accompanied appeal in which a delay of 70 days has taken place.
2. That the deponent upon receipt of certified copy of the order, inadvertently instead of filing appeal under section 483 of the Companies Act, filed an ordinary Letters Patent appeal under clause 10 of the Letters Patent on July 1, 1997, which was within the period of limitation period as described under the law.
3. That this error came to the notice of the deponent in the third week of July, 1997, when it received the petition back from the pad of the Additional Registrar raising objections that how Letters Patent appeal was competent in a company petition.
4. That the filing of the Letters Patent appeal on July 1, 1997, against the impugned order of the Hon'ble single judge within the limitation period of 30 days is on account of bona fide error on the part of counsel which is unintentional. Counsel thereafter contacted the deponent who was away in Delhi in connection with his business. Upon his return on July 27, 1997, he contacted his advocate and gave instructions to file fresh appeal under the Companies, Act. A period of about ten days was consumed thereafter in preparing the company appeal and on account of this reason, it could be filed only on August 11, 1997, thereby causing a delay of 70 days.
5. That a grave and manifest injustice will take place in case the delay of 70 days which has occurred on account of bona fide mistake on the part of his counsel, is not condoned and the petition heard on merits."
6. On a perusal of the averments made in the application and the affidavit, it becomes clear that the applicant has miserably failed to show that the delay in the filing of the appeal has been occasioned due to bona fide mistake. The affidavit of the director of the company cannot with any element of justification be made the basis for recording a finding that the advocate who filed the Letters Patent appeal against the order of the learned company judge did so under a bona fide mistake. The applicant has not explained as to why the affidavit of the concerned counsel has not been filed. That apart, the averments made in paragraph 4 of the application do not even disclose the name of counsel who filed the Letters Patent appeal. Likewise, the name of counsel who contacted the representative of the applicant has also not been disclosed. The date on which he contacted the applicant's representative has not been disclosed. It has also not been stated as to who gave instructions to which advocate for the filing of the appeal under section 483 of the Act. Why it took a long time of 10 days in the filing of the appeal has also not been explained. The failure of the applicant to provide these particulars shows that the cause shown for condonation of delay of 70 days is far from being bona fide. Therefore, we are unable to accept the plea of Shri Chibbar that the delay in the filing of the appeal should be condoned.
7. The proposition of law laid down in Rafiq v. Munshilal, AIR 1981 SC 1400, that a party should not suffer for misdemeanour or inaction of counsel is unexceptionable but that cannot be applied in the present case to condone the delay in view of the total failure of the applicant to give the bare minimum details to prove the existence of sufficient cause. The second decision relied upon by Shri Chibbar only shows that the court should adopt a liberal approach while adjudicating applications for condonation of delay. However, there is nothing in that decision which can justify acceptance of the applicant's prayer in view of our conclusion that it has failed to show sufficient cause for condonation of delay. Hence, the application for condonation of delay is rejected.
8. As a logical corollary of the dismissal of the application for condonation of delay, Company Appeal No. 17 of 1997, filed by the applicant, is dismissed as time-barred.