Punjab-Haryana High Court
M/S. Raj Deep Private Limited vs D.P. Kalra on 10 March, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CM No.1584-C of 2008 and 1
RSA No.507 of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CM No.1584-C of 2008 and
RSA No.507 of 2008
Date of decision: 10.3.2009
M/s. Raj Deep Private Limited ......Appellant
Versus
D.P. Kalra ......Respondent
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Ashwani Talwar, Advocate for the appellant.
Mr. Lokesh Sinhal, Advocate for the respondent.
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Rakesh Kumar Garg, J.
The applicant-appellant has filed this application under Section 5 of the Limitation Act for condonation of delay of 1826 days in filing the present appeal against the judgment and decree dated 9.10.2002 of the Additional District Judge, Panipat whereby the Lower Appellate Court has reversed the judgment and decree dated 28.8.1998 passed by the Civil Judge, Panipat and has decreed the suit of he plaintiff-respondent.
As per the averments made in this application, the property in dispute ( i.e. Seema Theatre complex including the shop in question) is owned by the appellant-M/s. Raj Deep Private Limited which is a company incorporated under the Indian Companies Act. The appellant-Company was incorporated on 27.3.1981 and Sohan Lal Punani was its Managing Director. In the year 1985, proceedings under Sections 145 and 146 Cr.P.C. were initiated against the properties of the Company i.e. Seema Theater Complex situated in the City of Panipat by the Sub Divisional Officer (Civil), Panipat. A petition bearing Company Petition CM No.1584-C of 2008 and 2 RSA No.507 of 2008 No.34 of 1987 was moved in the year 1987 before the Company Court in Delhi which vide order dated 3.12.1993 constituted an interim Board to manage the affairs of the Company. The interim Board comprised of:
1. Shri K.K. Mehra, Advocate, Co-Chairman
2. Shri Keshav Dayal, Sr. Advocate, Co-Chairman
3. Shri Sohan Lal Punani, Director
4. Shri Nikunj Bhushan Garg, Director
5. Shri Ved Parkash Paliwal, Director.
According to the averments, Sohan Lal Punani was the major shareholder of the Company and had approximately 65% of the shares. Unfortunately, on 2.8.2002, the said Sohan Lal Punani had a massive heart attack and was shifted to Escorts Heart Institute, New Delhi. He was unconscious and was put on mechanical ventilatory support. He was diagnosed as a case of Post Hypoxic Dementia and was discharged from the hospital on 17.10.2002. Even after his discharge, he continued to be in the state of semi-consciousness and had very little memory. His condition since 2002 till date continued to be the same. It has been further stated that the judgment was passed by the Additional District Judge, Panipat on 9.10.2002 and by that time Sohal Lal Punani had lost his consciousness and at that particular time, he was admitted in Escorts Hospital and the family members were busy in attending to him. The other Directors of the Company who were also part of the interim Board constituted by the Company Court were from the rival group. It has also been further mentioned in this application that Sohan Lal Punani was incapacitated and Nikunj Bhushan Garg had died in 2004 and thus, the interim Board constituted by the Delhi High Court had practically become defunct and there was no one on behalf of the Company to pursue the present case. It CM No.1584-C of 2008 and 3 RSA No.507 of 2008 is also the case of the applicant-appellant that nobody in the Company or in the family of Sohan Lal Punani came to know about the decree dated 9.10.2002 having been passed in favour of the plaintiff and against the appellant. It has been further stated in the application that the appellant came to know about the decree dated 9.10.2002 from his tenants in the shop on 27.11.2007 when a Court Bailiff visited the premises for taking over the possession of the shop. The applicant immediately contacted his Lawyer in Panipat who found out the exact position and thereafter, a certified copy of the orders was applied for on 27.11.2007 which was ready on 29.11.2007 and thereafter, the present appeal was filed. Thus, there was a delay of 1826 days in filing this appeal which was bona fide and unintentional.
On the basis of the aforesaid facts, the application for condonation of delay of 1826 days in filing the present appeal was filed by the appellant.
Upon notice, the plaintiff-respondent filed reply wherein it has been submitted that the appellant-Company was represented before the Lower Appellate Court at the time of passing of the judgment and decree dated 9.10.2002. Not only Sohan Lal Punani, his son Sandeep Punani was also represented as another Director. It was also shown that the present appeal has been filed by the appellant through said Sandeep Punani. Even Mohini Punani wife of Sohan Lal Punani was also represented before the Lower Appellate Court. It was further stated in the reply that even if for the sake of arguments it is presumed though not admitted that Sohan Lal Punani was not in a position to move, his wife Mohini Punani and son Sandeep Punani who were well represented before the Lower Appellate Court could have very well filed the appeal within time. Even otherwise if the Managing Director of the Company falls CM No.1584-C of 2008 and 4 RSA No.507 of 2008 sick the company itself does not become defunct and it keeps working and in the present case any representative of the Company could have filed appeal after getting authorization from the Board of Directors. It was further stated that there is absolutely no justification for condoning the delay as even the High Court of Delhi had passed orders in the Company Petition in the year 2005. Thus, it was stated that there were no sufficient reasons for condoning the delay in the present case. Lastly, it was prayed that the application for condonation of delay be dismissed.
I have heard learned counsel for the parties.
From the facts stated in the application, it is clearly made out that admittedly, the Punani Group had vital interest in the Company being the major shareholder to the extent of 65% shares. Even if, Sohan Lal Punani was suffering from illness yet it cannot be accepted that there was practically no one to look after the interest of the Company as it is not disputed that other Directors of the Company i.e. Sandeep Punani and Mohini Punani, who were Directors of the company, were also well represented before the Lower Appellate Court when decree dated 9.10.2002 was passed. Not only this, absolutely there is no explanation as to why the aforesaid Sandeep Punani or Mohini Punani could not file the appeal on behalf of the Company or what prevented them from filing the aforesaid appeal. No doubt, the law of limitation is to be construed liberally yet the applicant must establish sufficient cause for not preferring the appeal within the stipulated period of limitation and some evidence has to be brought on record in support of the case for condonation of delay. It is the case of the applicant itself that the Company Court of the Delhi High Court had passed many orders with regard to Constitution of interim Board of the company and also for appointment of receiver etc. It is further the case of the applicant that the proceedings before the Delhi High Court CM No.1584-C of 2008 and 5 RSA No.507 of 2008 were being carried out and it can be inferred safely that the appellant- Company was well represented before the Delhi High Court in the aforesaid company petition. If that is so, there is no reason for not filing the appeal in time in this Court challenging the judgment and decree dated 9.10.2002 passed by the Lower Appellate Court. In the present case, the ground for condonation of delay is sought on the ground of illness of Sohan Lal Punani one of the shareholders of the Company whereas the applicant-Company i.e. M/s Raj Deep Private Limited is totally silent about its other directors and has not given any reasons which prevented them from filing the appeal. Thus, the applicant-appellant has failed to prove on record sufficient reasons which prevented it from filing the present appeal within limitation. There is absolutely no justification to condone the delay of 1826 days.
In view of the aforesaid discussion, the application for condonation of delay in filing the appeal which is hopelessly time bared is dismissed. Since the application for condonation of delay in filing the appeal is being dismissed, the main appeal is also ordered to be dismissed as time barred.
March 10, 2009 (RAKESH KUMAR GARG) ps JUDGE CM No.1584-C of 2008 and 6 RSA No.507 of 2008