FINOLUX AUTO PVT LTD Vs. FINOLEX CABLE LTD

JUDGEMENT

(1.) Being aggrieved by the Judgment and order dated 9th August, 2004 passed by the learned Single Judge of this Court in IA No. 6510/2003 in CS (OS) No. 2347/2000, rejecting the application of the appellant herein filed under Order 9 Rule 7 CPC, the present appeal is preferred in this Court. The appeal is barred by limitation and there is delay of about 224 days in filing the present appeal. Consequently, an application under Section 5 of the Limitation Act is also filed by the appellant praying for condonation of delay in filing the appeal. Along with the said application filed under Section 5, an affidavit of the previous counsel who represented the appellant is also annexed. The aforesaid application filed under Section 5 of the Limitation Act is strongly opposed by the respondent who had filed reply thereto refuting the statements made in the application.

(2.) We have heard the learned counsel for the parties on the aforesaid application under Section 5 of the Limitation Act. The impugned order was passed by the learned Single Judge on 9th August, 2004. It is stated that the certified copy was applied for immediately by the appellant and the said certified copy was made available to the appellant on 23rd September, 2004. Thereafter, the appeal was required to be filed in this Court within 30 days from the date of receipt of the aforesaid certified copy by the appellant. It is stated in the application that the counsel for the appellant also received instructions from the appellant to file the appeal against the order dated 9th August, 2004 and on receipt of the aforesaid instructions, the counsel drafted the appeal and sent the same to the appellant for signatures, which was received back by the counsel on 23rd September, 2004 and that immediately thereafter, the same was filed in this Court on 24th September, 2004. Thus, there was a delay of four days in preferring the said appeal. The appellant has also stated so in paragraphs 3 and 4 of the application.

(3.) A perusal of the above said statements made in the said application reflects that the same are quite vague, as no date has been specified as to when the counsel sent the memorandum of appeal drafted by him to his client, the appellant herein, for signatures. No material particulars whatsoever in this regard have been furnished to this Court. The application is also vague in respect to the statements made with regard to the delay even thereafter, as it is apparent that there were some objections in the aforesaid appeal raised by the Registry for rectification, for which purpose, the memorandum of appeal was taken back by the counsel for the appellant for refiling.