Order No. 5 Date: 11-05-2017

Sri Shyamal Gupta, Member

Record is put up today for passing order in respect of a petition filed by the Appellants in respect of delayed filing of the present Appeal.

It is the case of the Appellants that summons of the complaint case were served to the Receiving Section of the Appellants.  After receiving the summons, it is stated that, the Appellant No. 3 took his summon but due to a communication gap in between the Receiving Section and the Despatch Section, the summons meant for the Appellant No. 2 was not given to him and so, he could not action it. In the process, the Appellants could not contest the case.  Appellant No. 3 although filed a petition challenging maintainability of the complaint, the Ld. District Forum rejected the said petition but no communication about to this effect was communication by the Ld. Advocate concerned and what is worse, whenever the Ld. Advocate concerned was asked about the progress of the case from time to time, allegedly, the Ld. Advocate concerned asked the Appellant No. 3 not to worry about the case.  Since after rejection of the maintainability petition, Ld. Advocate for the Appellant No. 3 did not appear before the Ld. District Forum and other Appellants were ignorant about the case, the instant complaint was heard ex parte.  Ultimately, when on 15-12-2016, Officers of the Hare Street Police Station entered the office of the Appellants, everything came to surface and thereafter, following frantic efforts, the Appeal was ultimately filed on 22-12-2016.

We have heard the averments made on behalf of Ld. Advocates appearing on behalf of their respective parties.  We have also given our thoughtful consideration to the material on record.

The primary reason behind belated filing of this Appeal has been attributed to miscommunication in between Receiving Section of the Appellants vis-à-vis their Despatch Section and non-appearance of the erstwhile Ld. Advocate who was representing the Appellant No. 3 before the Ld. District Forum.

What caught us by surprise, however, is the fact that the Appellants have not filed any cogent documentary proof in support of their contention.  Normally, when such gross negligence comes to surface, due enquiry is made to fix up accountability.  Further, in absence of any affidavit from the side of the so called erstwhile Ld. Advocate, merely on the basis of submission of the Appellants and more so, there being no apparent reason for the Ld. Advocate to behave so strangely, we cannot accept such averment of the Appellants as a gospel truth.  

Where the petitioner has not come with bona fide reasons to condone the delay, he is not entitled to be shown any indulgence.  The extent of liberal construction should not be such that it may totally ignore the public policy on which the law of limitation is founded and thereby defeat the very purpose of the law of limitation.  `Sufficient cause' has to be of the type, which is beyond control of the party invoking the provisions of section 5 of the Limitation Act. This is not the case here. In this regard, reference may be drawn to the decision of Hon’ble Supreme Court in the matter of Collector of Central Excise, Madras v. A.MD. Bilal & Co., reported in 1999 (108) Excise Law Times 331 (SC).

With due alacrity, the Appellant No. 3 could easily defend his case before the Ld. District Forum.  It is the settled position of law that an avoidable cause for delay by due care and attention cannot be sufficient cause. In other words, cause attributable to negligence or inaction of the party does not construe sufficient cause. Also, negligence and laches on the part of the Ld. Counsel cannot be condoned.

In the premises, as above, there seems no room to condone the delay of 143 days (excluding the statutory period of limitation) in filing the Appeal.  Therefore, we are constrained to reject the petition for condonation of delay.

Consequently, the Appeal stands dismissed being hopelessly barred by limitation.