1984 (12) TMI 319 - AT - Customs

Application for delay condonation rejected despite restoration grant, advocate's belief not accepted, substantive justice prevails.

RAVERDY MARC Versus COLLECTOR OF CUSTOMS (PREVENTIVE), BOMBAY

The application for condonation of delay in presenting the appeal was initially rejected due to insufficient cause shown for the delay. Subsequently, the ... - Issues Involved:1. Application for condonation of delay in presenting the appeal.2. Restoration of the application for condonation of delay and the appeal.3. Maintainability of the Reference Application filed by the Respondent.4. Merits of the condonation application.Detailed Analysis:1. Application for Condonation of Delay in Presenting the Appeal:The initial application for condonation of delay was rejected on 2nd August 1984 due to insufficient cause shown for the delay between January and March 1984. The applicant's advocate failed to inform the applicant of the six-month period allowed for filing the appeal from 9th January 1984, the date on which the applicant's disability ceased. The applicant was of unsound mind until 9th January 1984, and the delay in filing the appeal was satisfactorily explained by the advocate in a subsequent application and affidavit.2. Restoration of the Application for Condonation of Delay and the Appeal:The application for restoration was considered by another member, who set aside the order dated 2nd August 1984 and restored the application for condonation and the appeal, which was dismissed as barred by time. This restoration order was passed on 28th September 1984. The applicant's advocate filed a further application on 18th October 1984, supported by an affidavit.3. Maintainability of the Reference Application Filed by the Respondent:The Respondent's advocate submitted that the Respondent Collector had filed a Reference Application against the order dated 28th September 1984, which was pending consideration. The Bench expressed doubt regarding its maintainability and did not grant the request for a stay of the hearing of the restored application.4. Merits of the Condonation Application:The application was heard on merit. The applicant's advocate argued that the delay was satisfactorily explained and that the applicant was of unsound mind until 9th January 1984. The appeal was filed within three months after the cessation of disability, and the delay was due to a bona fide mistake by the advocate. The applicant, a foreign national, relied solely on his counsel's advice and guidance. The advocate's mistake in not informing the appellant of the right to appeal within six months from the cessation of disability was considered bona fide. The advocate's further application was made at great personal risk to uphold high professional ethics.The Departmental Representative opposed the application, arguing that the order dated 2nd August 1984 was on merit and could not be set aside by another member under Rule 20 of the CEGAT (Procedure) Rules, 1982. The first application for condonation was signed by both the party and the advocate, while the further application was signed only by the advocate and not supported by an affidavit from the party. The new ground urged in the further application was different from the original ground. The Departmental Representative contended that if legal disability was the cause, there was no delay, and no application for condonation was needed. The applicant's own statement indicated he was not of unsound mind after 9th January 1984.The Bench considered the submissions from both sides. The order of the learned member to restore the original condonation application did not preclude filing a separate application or affidavit supplementing the reasons. The focus was on substantive justice rather than procedural aspects. The Bench agreed with the advocate's contention that mistakes of counsel should not be visited upon the client and that 'sufficient cause' should receive liberal construction to advance substantial justice. However, the advocate's bona fide belief about the period of limitation was not accepted as it was not supported by due care and attention. The Customs Act and the Limitation Act did not provide for the extended period of limitation claimed by the advocate.The further application was seen as a device to cover an ulterior purpose, such as an attempt to save limitation in an underhand way. The applicant had not shown sufficient cause for the delay between 9th January 1984 and 26th March 1984. Consequently, the application for condonation of delay was rejected.