ORISSA INDUSTRIES LIMITED Vs. HARDAYAL AND SONS

JUDGEMENT

(1.) This order shall decide an application for restoration of appeal which was pending in this Court. The appellant approached his counsel Mr.Sudarsh Menon, who informed the appellant that his Junior noted the wrong date of hearing and therefore, the appeal was dismissed in default on 08.04.2004 The appellant asked his abovesaid, ex-Advocate, to get the appeal restored in May, 2004 The appellant was made to sign his application for restoration of appeal in May, 2004 However, the counsel for the appellant misled the appellant about filing of the said application. In January, 2005, Mr. Sudarsh Menon informed him that the application for restoration of appeal was misplaced and therefore, he asked him to file a fresh application for restoration. The Advocate kept on misleading the appellant and informed him that it would be listed in the High Court of Delhi very shortly. The appellant became suspicious, came to know that his appeal was dismissed in default on 08.04.2004 and no restoration application was moved. It also transpired that restoration application was filed in January, 2005. The same was taken from the filing counter on account of objections by Mr. Sudarsh Menon on 25.01.2005. However, the same was never re-filed. The instant application was filed on the record on 10.03.2005 i.e. after the expiry of about 11 months. The respondent has contested this application tooth and nail.

(2.) The first submission made by the learned counsel for the appellant was that appellant is a sick company and in view of the National Textile Corporation (D.P. and R) Ltd. v. Sh. Ramesh Chander Puri in C.R. No.449/2002 and CM No.979/2002, the conditions suggested by the respondent's counsel to deposit the entire amount with the Court should not be imposed.

(3.) I find force in this submission in a measure. How much money the appellant is required to deposit would be seen at the time of admission of this case. At this stage, I will decide the case to the extent of condonation of delay and position of a sick company. In Deputy Commercial Tax Officer and others v. Corromandal Pharmaceuticals and others, AIR 1997 SC 2027, it was held : -