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IN THE HIGH COURT AT CALCUTTA
HIRANMAY BHATTACHARYYA
Subir Guha Roy – Appellant
Versus
Sandip Ghosh – Respondent
| Table of Content |
|---|
| 1. overview of the cases and procedural history. (Para 1 , 2 , 3 , 4) |
| 2. arguments regarding evidence and proof in the ex parte case. (Para 5 , 6 , 7 , 8) |
| 3. counterarguments regarding service of summons. (Para 9 , 10 , 11 , 12) |
| 4. application of limitation period due to covid-19 extensions. (Para 14 , 15 , 20) |
| 5. assessment of filing dates in relation to limitation. (Para 18 , 21 , 22) |
| 6. analysis of substituted service and its implications on proceedings. (Para 23 , 24 , 27 , 28) |
| 7. approach to condonation of delay and sufficient cause. (Para 29 , 30 , 31) |
| 8. judicial discretion in assessing delay and remand for fresh adjudication. (Para 32 , 33 , 34) |
| 9. distinction of case precedents and their applicability. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42) |
| 10. final order on remand and costs. (Para 44 , 45 , 46) |
JUDGMENT :
HIRANMAY BHATTACHARYYA, J.
1. This application under Article 227 of the Constitution of India is at the instance of the plaintiffs and is directed against judgment and order dated 19.11.2024 passed by the learned District Judge, 24 Parganas (South) at Alipore in Misc. Appeal No. 381 of 2023.
2. By the judgment and order impugned, the Misc. Appeal was allowed thereby
The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.
Actual service of summons by registered post acknowledgment due is valid, even if defendants reside outside jurisdiction, and non-compliance with procedural rules does not equate to no service.
The court emphasized that applications for condonation of delay should be decided on merits, prioritizing substantial justice over technicalities, especially when the delay is not due to negligence.
The court affirmed that mere lack of knowledge due to negligence does not justify condoning an extensive delay in responding to an ex parte decree.
Tribunal lacks jurisdiction to condone delay in appeal beyond 15 days under Section 61(2) of the IBC.
Point of law: Once court accepts explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisiiona....
Courts can consider merits alongside delay in restoration petitions under CPC to promote justice over technicalities.
Judicial discretion in condoning delay must favor substantial justice over rigid adherence to timelines, though sufficient cause for delay must be demonstrated.
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