PROGRESSIVE CONSTRUCTION LTD. Vs. HIMADRI SHANKAR ROY

JUDGEMENT

(1.) By way of the application under consideration, the appellant seeks condonation of delay of 4486 days in filing the appeal to assail money recovery decree. Having heard learned senior counsel for appellant at length and having perused the records, I found it not fit case to even issue notice of the application to the other side.

(2.) Briefly stated, the circumstances pleaded by the appellant in order to explain this inordinate delay in filing the appeal are as follows. During pendency of the suit, which culminated in the impugned judgment and decree dtd. 18/9/2012, counsel for the appellant (defendant no. 1 before the trial court) stopped appearing without any intimation to the appellant, leaving the appellant under an impression that the matter was being pursued by the counsel. In the year 2011, due to changes in management and financial constraints, the appellant company closed its office in New Delhi and thereafter their authorized representative left job without updating status of the suit, due to which the appellant company lost track. On 27/9/2019, the appellant company received demand notice under Insolvency and Bankruptcy Code (IBC) issued by the present respondent no. 1 and it is only after receipt thereof, that the appellant came to know about disposal of the suit. On 15/10/2019, the appellant received certified copy of the impugned judgment and decree, after which on 29/11/2019, the appellant filed an application under Order IX Rule 13 CPC seeking setting aside of the ex-parte judgment and decree. The said application under Order IX Rule 13 CPC was dismissed on 20/9/2024. However, according to record, the said application under Order IX Rule 13 CPC was dismissed on 27/5/2024, which order was challenged by the appellant before this Court and a co-ordinate bench allowed the counsel for appellant to withdraw the said appeal (FAO 300/2024) when the learned counsel for appellant stated that the judgment and decree dtd. 18/9/2012 was not an ex-parte judgment and decree, so appropriate remedy should have been to challenge the same by way of Regular First Appeal instead of filing an application under Order IX Rule 13 CPC. The present appeal was filed on 8/10/2024. Hence, the present application.

(3.) During arguments, learned senior counsel for appellant took me through the aforesaid and contended that this is a fit case to condone the delay of 4486 days in filing the present appeal. Learned senior counsel for appellant contended that the delay from 18/9/2012 to 27/9/2019 is explainable on the ground of professional misconduct of their earlier counsel, who stopped appearing before the trial court without any intimation to the appellant; and that the period from 27/9/2019 to 20/9/2024 is explainable on the ground that during the said period, the appellant was bona fide pursuing the remedy under Order IX Rule 13 CPC, so it is entitled to benefit under Sec. 14 of the Limitation Act. During arguments, in response to a specific query, learned counsel for appellant submitted that the appellant has not taken any action against the erstwhile counsel for his alleged professional misconduct.