The court emphasized a liberal approach in assessing sufficient cause for condonation of delay under Section 5 of the Limitation Act, particularly when the delay is marginal and does not prejudice the opposing party.

JUDGMENT :

I.P. Mukerji, J.

1. Learned counsel for the appellants sought admission of the appeal APOT 338 of 2023 praying for condonation of delay of 66 days in preferring it and of 58 days in preferring the other appeal APOT 317 of 2023. There was divergence of opinion amongst learned counsel for the parties with regard to the exact delay, the respondents alleging that the delay was a little longer. In any event, the delay in preferring each of the appeals is very marginal.

2. Nevertheless, Mr. Anindya Kumar Mitra, learned senior counsel appearing for the respondents very seriously opposed the admission of the appeal. He argued that even this marginal delay should not be condoned.

3. A short but most interesting argument made by learned counsel was that an applicant for condonation of delay had to show sufficient cause which prevented him from preferring the appeal or application within time. According to him the applicant was required to show some steps in the prosecution of the matter within the period of limitation. At the time of consideration of the delay in filing the proceeding it had to be declared by the court that the delay was the result of sufficient cause. In this case the appellants had taken no steps to file the appeal before expiry of the period of limitation, he argued.

4. I shall make a more detailed analysis of learned counsel’s argument after narrating the arguments made by Mr. S.N. Mookherjee, learned counsel appearing for the appellants.

5. He placed paragraphs 87-93 of the petition for condonation of delay, admission of appeal and stay.

6. The impugned judgment and order of the learned trial court was made on 15th June, 2023. The period of limitation for filing the appeal was to expire on 15th July, 2023. Ultimately the appeal was filed on 11th September, 2023.

7. How was the delay between 11th July, 2023 and 11th September, 2023 explained in the above paragraphs?

8. It is said that on 19th June, 2023, 22nd June, 2023 and 28th June, 2023 several conferences were held by the appellants with their then recorded advocate. After such meetings the appellants decided to change their advocate. They did so. On 5th July, 2023 a meeting was held with him. It appears that the present advocate on record advised the appellants to file an appeal from the impugned judgment and order. Counsel was briefed on 20th July, 2023. The draft was made ready by junior counsel thereafter. A conference was held senior counsel who suggested changes in the draft. These changes were duly incorporated by the junior counsel. On 8th August, 2023 this draft was sent to senior counsel for settlement.

9. Then it transpired that the erstwhile advocate on record had not put in the requisition for drawing up and completion of the impugned judgment and order and for obtaining certified copy thereof.

10. Necessary leave of the court to put in such requisition was obtained only on 24th August, 2023. The certified copy of the judgment and order was obtained by the advocate on record for the appellant only on 6th September, 2023. It appears from the records that the appeal APOT 317 of 2023 (Kedernath Tradecomm LLP & Ors. vs. Mayank Agarwal & Ors.) was filed on or about 11th September, 2023 whereas the other appeal APOT 338 of 2023 (Omkar Tradecomm LLP & Ors. vs. Mayank Agarwal & Ors.) was filed on or about 15th September, 2023.

11. Mr. Mitra pointing out the above facts submitted that there was nothing on record to show any conference to have been held in June, as alleged. At any rate even according to the averments made by the appellants that the draft appeal was not prepared by junior counsel within the period of limitation. Hence no positive steps had been taken by the appellants within the period of limitation to enable the court to declare that there was sufficient cause which prevented them from filing the appeal within time.

12. Learned counsel for the respondents filed a supplementary affidavit wherein it was, inter alia, stated that the former advocat