IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 18120 OF 2022

IN

FIRST APPEAL(ST) NO. 13887 OF 2022

M/s. R. P. Gupta Transport Pvt. Ltd. … Applicant/

Appellant

versus

Jaya Sudhakar Janarao And Ors. …. Respondents

………...

Mr. Ajay Paniker a/w. Ms. Lavanya Panicker i/b. Ajay Law Associates,

Advocate for the Applicant / Appellant.

Ms. Varsha Chavan, Advocate for Respondents.

CORAM : R. M. JOSHI, J.

S S K O A IL T N A I A S JE L H I DbSK D21+ 00 yAI i a 0 g L 2: t T 7 S 5 i e A 5 I t 0 O 0 : S a J . 0 1: E Nl H 32 y 5 A . 1 sL 1 iIgned DATE : 9^th DECEMBER, 2025.

P.C. :

1. None for the claimant. Absence of claimant shows claimants are not interested in opposing the application. Hence application is proceeded in

absence of the claimants.

2. Heard learned counsel for the applicant and insurer.

3. This application is for condonation of delay in filing the appeal against the Judgment and Award dated 28.07.2009 passed in M.A.C.P. No. 11 of 2007 and delay of 12 years 7 months 17 days. It is sought to be

condoned. Heard learned counsel for both the sides.

4. It is contention of learned counsel for the appellant that though the

impugned Award has been passed on 28.07.2009, it is only on 09.03.2022 during the execution proceeding the name of the present applicant / appellant is incorporated as a respondent in the Award. Thus, it is his contention that practically the cause of action arose for the applicant to take exception to the said Award only after the said amendment is carried out and hence in fact there is no delay in filing appeal.

5. This contention is opposed by the learned counsel for the insurer on the ground that record indicates the knowledge of the appellant with regard to the filing of the proceedings before the Tribunal so also before the Execution Court as back as in the year 2015. It is submitted that only on account of clerical error/mistake committed in recording the name of the respondent / owner in the original proceeding, the amendment was allowed by the Execution Court. It is further contended that the delay has not been satisfactorily explained in view of the fact that the appellant had knowledge of the proceeding before the Tribunal as well as before the Execution Court.

6. Though it appears that delay is of 12 years 7 months 17 days, the question is required to be decided as to whether the appellant had cause of action for challenging the said Judgment and Award till the name of the appellant is included as a respondent in the original proceeding and consequently in the Award.

7. The fact that the Execution Court has permitted the correction in the name of the respondent / owner in the original proceeding and consequently in the Award itself indicates that there was no Award against the present appellant. It is pertinent to note that this is not the case where name of an individual is mis-spelt and is corrected subsequently. Applicant is a legal entity and unless the legal entity is named as party respondent and award is passed against such respondent, it cannot be assumed that award was against Applicant. If no such Award was there, question of cause of action arising for challenging the said Award to applicant does not arise. Thus it cannot be said that there is delay in filing of appeal.

8. In so far as other issues sought to be raised by the learned counsel for the insurer about the service of notice on the respondent and the clerical mistake in the name of the respondent would be considered at the time of hearing of the appeal.

9. Suffice is it to say that prima facie case is made out by the appellant indicates that there was no cause of action for the appellant to take exception to the Award until the correction in the Award was made whereby the name of the applicant is included as respondent /owner. In such circumstances, formal application for condonation of delay stands allowed. Appeal be registered.

10. At this stage, learned counsel for the insurer on instructions, makes statement th