IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CAPP No. 15 of 2008

DATE OF DECISION: February 10, 2009

COVENTRY COIL-O-MATIC (HARYANA) LIMITED

…APPELLANT

VERSUS

ICICI BANK LIMITED AND ANOTHER

…RESPONDENTS

CORAM:

HON’BLE MR. JUSTICE M.M. KUMAR

HON’BLE MR. JUSTICE H.S. BHALLA

Present:

Mr. R.C. Setia, Senior Advocate, with

Mr. S.S. Behl, Advocate,

for the appellant.

Ms. Jai Shree Thakur, Advocate,

for the respondents.

1.

Whether Reporters of local papers may be

allowed to see the judgment?

Yes

2.

To be referred to the Reporters or not?

Yes

3.

Whether the judgment should be reported in

the Digest?

Yes

M.M. KUMAR, J.

The appellant is a company in liquidation and has invoked

Section 483 of the Companies Act, 1956 (for brevity, ‘the Act’)

challenging order dated 7.8.2008, passed by the learned Company Judge

directing publication of the factum of admission of Company Petition No.

129 of 2004. The company petition was admitted on 26.5.2005. It is

appropriate to mention that at the time of admission, learned counsel for

the appellant was present before the Court and the reason for admission

given in the order dated 26.5.2005 is that the appellant did not file reply

CAPP No. 15 of 2008

despite repeated opportunities given. The order dated 26.5.2005 further

reveals that the matter was to be listed for publication on 28.7.2005.

However, order dated 26.5.2005 was challenged by invoking Section 483

of the Act in Company Appeal No. 13 of 2008. Alongwith the appeal

applications for condoning the delay of 1050 days in filing and 72 days in

re-filing the appeal were also filed. The Appellate Bench declined to

condone the delay of 1050 days in filing the appeal although it has

condoned the delay of 72 days in re-filing of the same. The operative part

of the order dated 1.8.2008, rejecting the prayer made for condonation of

delay in filing Company Appeal No. 13 of 2008 reads thus:-

“

We have gone through the contents of the

application and unable to agree with the contentions raised by

the counsel for the appellant. A perusal of the above would

show that no reasons whatsoever have been given by the

applicant, which could explain an inordinate delay of 1050

days in filing the Company Appeal. There can be no dispute

that where sufficient cause, as mentioned in Section 5 of the

Limitation Act, has been shown by the applicant, it must

receive a liberal construction so as to advance substantial

justice. Delays in preferring appeals should be condoned in

the interest of justice where no gross negligence or deliberate

inaction or lack of bonafides is imputable to the party seeking

condonation of delay. The period of limitation is primarily

provided and is meant to see that the parties to the litigation

do not resort to deliberate tactics but seek their remedy

promptly. The courts must keep a balance and for that a

distinction should be made between cases in which delay is

2

CAPP No. 15 of 2008

inordinate, which would cause prejudice to the rights of the

other side. Where there is an inordinate delay, the Courts

must take a cautious approach and do substantial justice to the

parties to the litigation.

The impugned order dated 26.05.2005 is an order

admitting the petition for winding up of the applicant-

Company, which was passed when despite various

opportunities granted to the applicant/appellant to file reply to

the application, no reply was filed. The counsel for the

applicant/appellant was present in Court when this order was

passed. The applicant/appellant cannot thus say that they

were not aware of the order passed by the Company Court.

The reasons mentioned for condonation of delay (reproduced

above) do not fall within the expression sufficient cause.

Rather it is an inordinate and unexplained delay of 1050 days

in filing the appeal. We do not have any hesitation to hold

that the delay is not bonafide but a deliberate one and can be

termed as a