IMPORTANT POINT
The court ruled that mere negligence and lack of diligence do not constitute sufficient cause for condoning delay in filing an appeal under the Limitation Act.

JUDGMENT :

(Saurabh Banerjee, J.)

CM APPL. 66623/2024

This is an application under Section 5 of the Limitation Act, 1963 filed by the appellant seeking condonation of 182 days delay in filing the accompanying appeal under Section 13 of the Commercial Act, 2015 against the judgment and decree dated 02.03.2024 (impugned judgment) whereby the learned Single Judge has decreed the suit for recovery of Rs.2,45,35,797.20/- alongwith interest @6% per annum from 01.05.2015 till realization, as instituted by the respondent.

2. Since we are hearing the learned counsel for appellant for adjudication of the present application seeking condonation of delay, there is no need for us to advert to the merits of the matter.

3. It is the case of the appellant that though the impugned judgment was delivered on 02.03.2024, it never received a certified copy thereof from its erstwhile Advocate before the learned Single Judge and the decision came to its knowledge only upon receipt of notice of the execution petition filed by the respondent on 03.07.2024. Thereafter, though it deputed and contacted one Mr. Apoorva Sarvaria, Advocate on 16.07.2024, he opined against filing of an appeal on 02.08.2024 against the impugned judgment.

4. Thereafter, from 06.08.2024 till 23.08.2024, the files qua the present case kept on moving from various offices of the appellant.

5. Based on this opinion given by the said counsel, a statement was made on behalf of the appellant before the learned executing Court on 20.08.2024 that the payment of the decretal amount would be made within a period of six weeks. It is after the disposal of the said execution petition on the basis of the undertaking given by the appellant to make the payment of the decretal amount to the respondent, that the appellant claimed to have sent the file again for comments of the Fire Technical Department, which opined on 01.10.2024 that an appeal should be filed.

6. Then, in the meanwhile, an application for revival of the execution petition was filed by the appellant, wherein this Court on 24.10.2024 directed the appellant deposit the entire decretal amount with the Registry of this Court within a period of one week.

7. It is then that the appellant took steps to prefer the present appeal alongwith the present application ultimately on 06.11.2024. Under these circumstances, learned counsel for appellant submits that the delay in filing the present appeal was not wilful and has occasioned only due to circumstances which were beyond the control of the appellant. He submits that the appeal was filed on 06.11.2024 only because the appellant learnt about the impugned judgment on 03.07.2024 when they received the notice of the execution petition filed by the respondent. It is his claim that as noted hereinabove, after receiving notice of the execution petition, the appellant first tried to contact its erstwhile counsel who was representing the appellant before the learned Single Judge, but upon receiving no response from him, engaged another counsel on 16.07.2024, who gave his specific opinion on 02.08.2024 that the case was not a fit case for filing an appeal and the appellant should pay the decretal amount.

8. He submits that now that the appellant has also deposited the decretal amount before the Executing Court, this Court ought to condone the delay and examine the impugned judgment on merits. He vehemently submits that the appellant’s plea that the impugned judgment is liable to be set aside as regarding the non-consideration of the surveyor’s report towards the purported under insurance has not been considered by the learned Single Judge.

9. On the other hand, Mr. Kirti Uppal, learned Senior Counsel who is appearing on behalf of the respondent on advance notice opposes the application by urging that the reasons given in the application itself shows that the matter has been dealt with in a most casual manner by the appellant. Further he contends that the appellant had specifically undertaken before the learne