Case lows of Condonation delay by mistake of Lawyer's clerk

[pravin bansal]

Dear sir,

I want to case laws of high court for Condonation delay by mistake of Lawyer's clerk because my appeal rejected by commissioner (appeal) lucknow for delay of two days

[DR.MARIAPPAN GOVINDARAJAN]

Dear Sir,

Kindly give the details of your case. Two day delay is condonable. On seeing your facts of case I will give the relevant case laws. In the meantime you may file an appeal before the Tribunal against this order within the limitation period.

[pravin bansal]

Case lows of Condonation delay by mistake of Lawyer's clerk

Dear sir, I want to case laws of high court for Condonation delay by mistake of Lawyer's clerkbecause my appeal rejected by commissioner (appeal) lucknow for delay of two days the order of commissioner Lucknow was received on DT.10/10/2013 and appeal memo was delivered on 12/12/2013 and hearing at the time 04/02/2014 but no information given by commissioner of related of condonation delay and reject the appeal of same reason

[DR.MARIAPPAN GOVINDARAJAN]

Whether the Commissioner (Appeals) furnished a copy of the order to you? In your case appeal is to be filed before the Tribunal. Whether you have filed appeal before Tribunal? If not it will also cause delay of filing appeal before the Tribunal. Since I am busy with audit of CE and CAG I could not able to search the required order. Please inform the present status. I shall furnish the order shortly.

[YAGAY andSUN]

Dear Pravin,

For your kind information.

ST - Litigants should not suffer due to fault of their Advocate - Appeal should have been decided on merits and not on mere technicalities - Delay of 536 days in filing appeal condoned: High Court.

RANCHI, AUG 26, 2015: THEpetitioner had filed an application before the CESTAT for condonation of delay of 536 days but the same was dismissed on the ground that there was no reasonable ground for the condonation.

Before the High Court, the petitioner submitted that -

+ There was no intentional delay on their part - Inasmuch as the o-in-o was passed on 01.04.2011 and received on 05.04.2011 confirming a ST demand of ₹ 1.55 crores and imposing penalty; thereafter they engaged an Advocate and papers were handed over to him on 09.04.2011; memorandum of appeal was prepared and the petitioner signed it on 30.05.2011 but thereafter the Advocate had not signed the appeal. Meanwhile, a demand letter dated 13.09.2012 was received from the Supdt. CE., Jaipur and later the petitioner received the appeal papers from the office of the Advocate on 30.11.2012.

+ Affidavit sworn by partner of the petitioner stating in detail the chronological sequence of events that led to the alleged delay in filing the appeal was not appreciated by the CESTAT.

+ Certificate given by the junior of the erstwhile Advocate was not appreciated. It is mentioned that due to illness of the Advocate the appeal could not be filed and later the Advocate expired. After receipt of papers on 30.11.2012, the petitioner filed appeal on 24.12.2012.

+ There was a delay of 536 days in preferring the appeal which was explained showing aforesaid reasons before the CESTAT but the same was not properly appreciated and inspite of there being reasonable grounds, application for condonation of delay was rejected.

The High Court after going through the facts culled by the petitioner relied upon the apex court decision in IMPROVEMENT TRUST, LUDHIANA vs. UJAGAR SINGH AND OTHERS-2010 (6) TMI 660 - SUPREME COURT and condoned the delay on the following reasoning -

+ It appears that there is no fault lying on the part of this petitioner at all.

+ In the facts of the present case also, we find no negligence on the part of the petitioner, who took proper and timely steps and the delay was unintentional and occurred only due to lack of communication.

+ Appeal should have been decided on merits and not on mere technicalities - it appears that there were reasonable grounds for condonation of delay, which were not appreciated by the CESTAT, Kolkata and the Appeal was dismissed without going into its merit. But,since a huge liability of Tax and penalty have been imposed upon this petitioner vide the Order in Original and therefore, the points taken in the Order in Original should have been decided on merits.

+ Litigants should not suffer due to the fault of their Advocate - It appears that in the present case all possible steps were taken by the appellant and had there been a timely intimation by its Advocate, delay would not have occurred and, therefore, the appeal should not have been dismissed merely on the ground of delay because a litigant should not suffer because of ill health of the Advocate.

The delay was condoned and the appeal was restored to the original file of CESTAT. The petitioner was directed to deposit the cost of ₹ 35,000/- with the Commissioner, CE & ST, Jamshedpur within three weeks.

(See M/s B.R. SINGH & Co. Versus The Commissioner, Central Excise and Service Tax and Superintendent, Central Excise, Tube Range, Jamshedpur, 2015 (8) TMI 1016 - JHARKHAND HIGH COURT)

AI Summary

Advocate's fault: appeals should be decided on merits when delay stems from counsel's illness or communication breakdown. Where delay in filing an appeal is attributable to communication breakdowns, illness or incapacity of an advocate, or mishandling of papers by counsel's office, those circumstances may constitute reasonable cause for extension of time so that the appeal is decided on its merits; courts will examine affidavits, correspondence and office certificates and may permit prosecution of the appeal subject to conditions such as payment of costs.