The main legal point established is that unsupported and false reasons for delay will not be condoned under Section 5 of the Limitation Act.

IA No.9995 & 9996 of 2008

1. This application under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 has been made by the applicant/Judgment Debtor for condonation of delay in moving the application being IA No.9996 of 2008 under Order 9 Rule 13 of CPC for setting aside the ex parte decree/judgment dated 15th March 2004.

.2. The arbitration award dated 25th March 1998 was filed in the Court by the Arbitrator and notice of the award was sent to the applicant. The applicant filed objections against the award under Section 30 of the Arbitration Act, 1940. However, the objections were dismissed by this Court for non prosecution as well as in default on 15th March 2004 and the award

.was made a rule of the Court on 15th March 2004 and the decree sheet was ordered to be prepared. The applicant made an application under Order 9 Rule 13 CPC on 14.08.2008 for setting aside order dated 15th March 2004 and also made an application for condonation of delay of 1550 days.

3. The applicant has made this application under Section 5 of Limitation Act stating therein that the applicant firm became non-functional sometime in the year 1998 due to differences and disputes between the partners, although all the partners were closely related as family members. The partners made allegations of mismanagement and misappropriation of funds against each other with the result that the operation of the firm became static and the firm had to be closed down from 1998 onwards. The office of the firm virtually closed down as there was no officer to take decision on legal/ business matters. There was no person to take care of the important notices and the papers served on the applicant. This suit was also one of such documents which remained unattended due to lack of proper instructions being given by the office of the applicant and hence no steps were taken in these proceedings by the advocate representing the applicant. The advocate for the applicant appeared in the Court up to 21st January 2004, as revealed from the record. There was failure of appearance thereafter which resulted into passing of the impugned judgment and decree dated 15th March 2004.

.4. It is submitted by the applicant that Mr. Satish Kumar Jhunjhunwala, one of the partners of firm, had became physically unwell and was being affected by recurring ailments, so he could not attend the office of the firm nor he could participate in the business. He was, therefore, compelled to keep himself away from the affairs of the firm and it became difficult for him to

.take any initiative and to participate in the business of the applicant upto end of 2006. The heath condition of Mr. Satish Kumar Jhunjhuwala improved and he slowly started participating in the business of the applicant. There was negligence on his part but it was due to physical infirmities and the award became decree of the court. Mr. Satish Kumar Jhunjhunwala came to know of the execution proceeding from Execution Case No.119 of 2008 which was transferred to High Court of Calcutta under the orders of this Court in the end of July/1st week of August 2008 and a copy of execution proceedings was served upon him. On inquiries he came to know about the case and then instructed the counsel to make this application. It is submitted by applicant that the applicant had a good case on merits to get the decree dated 15th March 2004 set aside and it was due to closure and non operation of the firm and physical inability of Mr. Satish Kumar Jhunjhunwala to give instructions that an ex parte decree was passed in absence of the applicant. It is also submitted that the law firm engaged by the applicant did not inform the applicant about the decree having been passed and the applicant being in Kolkata could not pursue the case properly due to communication gap. It is prayed that the reason for making the application under Order 9 Rule 13 with a delay of 1550 days have been sufficiently explained by