The main legal point established in the judgment is that the delay in filing the appeal was not justified and the financial incapacity of the appellant to meet the awarded liability was considered.

C. HARI SHANKAR, J.

1. We had, on 14th March, 2018, dismissed this appeal, stating that the reasons for the decision would follow. This judgment proceeds to record the reasons for dismissing the appeal.

2. The order, dated 4th October, 2013, which this appeal impugns, dismisses an application, filed by the appellant, in OMP 375/2013, under Order XXXIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”), for being exempted from the requirement of payment of court fee, and also peremptorily dismisses the OMP itself, in the event of default, on the part of the petitioner, in depositing the court fee within two weeks of the order. The said period having expired, without deposit, by the appellant, of court fee, OMP 375/2013 itself stands dismissed.

3. A prefatory recitation of facts would be apposite, the outset. On 1st July, 2008, an agreement was entered into, between the Emirates Trading Agency, LLC, UAE and the respondent, for sale of 45,000 Metric Tons (MT) of steaming non-coking coal, for a total price of $ 4,922,738.15. Pursuant thereto, a High Seas Sale agreement, dated 7th July, 2008, was entered into, between the appellant and respondent, whereby and whereunder the appellant agreed to pay, to the respondent, $ 5,167,696.67, representing 100% of the value of the documents and 1% trading margin thereon, where against the respondent agreed to transfer, to the appellant, the goods, by endorsing a set of negotiable instruments. Pursuant thereto, the respondent, vide letter dated 2nd July, 2008, forwarded, to the appellant, all documents relating to import and purchase of the goods. Bill of Lading was also issued to the respondent, and endorsed to the appellant. The agreement between the appellant and respondent required the appellant to file the Bills of Entry in its own name, and arrange for clearance of the cargo, including payment of Customs duty, port charges, demurrage, etc. It appears that, on 17th July, 2008, Letter of Credit was established, by the appellant, in favour of the foreign supplier, in accordance with the agreement between the appellant and the respondent, and payment, thereunder, was made on 27th October, 2008. The original Bills of Entry, filed by the appellant in its own name with the Customs authorities, were provided, by the appellant to the respondent, under cover of letter dated 26th November, 2009. The total quantity of goods, as per the said letter, was 46,801.216 MT. In terms of the agreement between them, the appellant and respondent also entered into a Deed of Pledge, dated 26th July, 2008, whereby the goods sold to the appellant were pledged in favour of the respondent; custody of the goods, however, was to continue to remain with the appellant.

4. On 12th January, 2009, the appellant sent an e-mail, to the respondent, submitting a proposal for taking delivery of the coal and requesting for permission to sell it, and arrange to make payment of the amount received from third parties there against. Despite certain relaxations given by the respondent, the appellant failed to lift the entire quantity of goods. The appellant, thereafter, issued post-dated cheques, to the respondent, against which de-pledge orders, for part quantity, were issued. All the cheques, issued by the appellant, however, were dishonoured, resulting in the respondent initiating, against the appellant, proceedings under Section 138 of the Negotiable Instruments Act, 1881. The said proceedings continue to remain pending, as on date.

5. The goods were discharged, by the appellant, by filing Bills of Entry in its name, and were stored at the port area at Kandla. On 5th September, 2009, the appellant again approached the respondent for de-pledging of the goods with a proposal for settlement of the outstanding liability. However, vide subsequent letter dated 19th November, 2009, the appellant informed the respondent that the goods had been destroyed in fire, for which they had filed a claim with