TaxTMI 
TaxTMI 
2020 (1) TMI 190
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....ntended the following: (i) That vide Order dated 15.03.2013, the Hon'ble Appellate Tribunal after hearing both sides admitted the appeal, issued Notice to learned Respondent for taking instructions. Later on 29.08.2013 after hearing the Appellant's Counsel, Hon'ble Appellate Authority directed the learned Counsel for the Respondent to file the reply. Thereafter the arguments were heard on several dates, wherein Counsel regularly appeared. (ii) That on 28.11.2014 this Hon'ble Appellate Tribunal vide Order of the date directed listing of the matter along with other matters arising out of OC No. 76/2010 and thereafter on 16.01.2015, the matter was extensively heard when Applicant undersigned counsel appeared and argued the matter. (iii)That as the next date of hearing i.e. on 19.03.2015 Counsel's father Shri Ashok Sapra was not well and a junior counsel appeared and as no hearing took place on the said date on account of Respondent's Counsel's non availability she did not note the date being new in profession. (iv) That due to father's ailment, Counsel lost track of the matter and same went unattended. Later Counsel's father Advocate Ashok Sapra left his heavenly abode in Ja....
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....r restoration of appeal, the nonapplicant (respondent), inter-alia, made the following contentions with a prayer to dismiss the application: a) That, the instant application for restoration was filed by the Appellant, M/s. Bharat Glass Tube Ltd. before this Hon'ble Appellate Tribunal against the judgment/order dated 19.08.2015........................ In the recent past, the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathjpur Nafar Academy, (2013) 12 SCC 649, while dealing with an issue involving delay of 2449 days had referred various precedents on condonation of delay and cumulatively laid down guidelines on condonation of delay and one of the important said guideline is that:- Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters. b) In the case of General Manager, Northe....
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....from the side of the appellant was over and the argument from the side of the respondent was yet to be completed. It is also submitted that since the argument from the side of the appellant was already over, there was no need for appearance of the appellant or the advocate of the appellant and the matter should have been decided on merits by the Tribunal. The second important submission made by the learned counsel for the applicant that on 19.03.2015 counsel's father Shri Ashok Sapra was not well and a junior counsel appeared, and as no hearing took place on the said date on account of respondent's counsel's non-availability, she did not note the date being new in profession. The third important submission made by the learned counsel that learned counsel's father advocate Shri Ashok Sapra died in January, 2017 after prolonged illness, followed by serious illness and hospitalization of her mother on several occasions. The fourth important submission mad by the applicant that no prejudice would be caused to the respondent, whereas there would be immense prejudice to the applicant if the appeal is not restored. 5. In the said application for restoration it is contended that in suppor....
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....o 30.04.2015. The matter was again listed before the Full Bench on 30.04.2015, on which date no one was present on behalf of the appellant and again in the interest of justice no adverse order was passed by the Full Bench and the appeal was posted to 19.08.2015. On this date the matter was listed before the Division Bench but no one from the side of the appellant was present on first call, the matter was passed over and again taken up at 01:50 P.M. but no one was present on behalf of the appellant and the case was dismissed in default. 9. Thereafter, on 02.05.2019 the present application for restoration of appeal has been filed by Ms. Shikha Sapra, advocate. Subsequent to the filing of the application for restoration of appeal, Shri Suryakant Singhla Advocate filed Vakalatnama dated 21.11.2019 on behalf of M/s. Bharat Glass Tube Ltd., the appellant. In the said Vakalatnama the name of Ms. Shikha Sapra, Advocate, the present applicant does not appear. The application for restoration of appeal has been filed by Ms. Shikha Sapra as an Advocate, not as an advocate for the appellant. Nowhere in the application it is stated that Ms. Shikha Sapra is filing the application on behalf of M/....
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....was executed on 23.05.2011. It is also seen from the orders that these advocates were appearing in the appeal. But on the day when the appeal was dismissed for default and on earlier dates i.e. on dated 30.04.2015 and 19.03.2015 the appeal remained unrepresented from the side of the appellant. The matter was part-heard before the Full Bench. In other words, though the arguments of the appellant were concluded but the argument from the side of the respondent and reply from the side of the appellant was yet to be made. So, the presence of the appellant/advocate of the appellant was necessary. The Full Bench gave scope to the appellant twice before the date of the Impugned Order to remain present. No adverse order was passed in the interest of justice. 13. It is not pleaded in the restoration application that the appellant did not appear in any other case before any other Court and remain absent during the said period of 1350 days when the applicant could not perform her professional work. 14. The applicant who is not the appellant herself could have intimated the appellant about her compulsion/situation of not appearing in the appeal. Further, the other two counsels who have signed....
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....Court passed in the matter of "Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649", and submitted that the Hon'ble Supreme Court in the aforesaid matter laid down guidelines on Condonation of Delay. 19. I have gone through the aforesaid judgment of Hon'ble Supreme Court. Their Lordships have referred various judgments of Hon'ble Court and summarized certain guidelines for Condonation of Delay. It is understood from the said guidelines that all the principles are to be read together while considering an application for condonation of delay. Each application for condonation of delay is to be considered based on the facts and circumstances of each case. No doubt a liberal, pragmatic, justice oriented, non-pedantic approach has to be made with respect to an application for condonation of delay to advance justice. For that reason there must be sufficient cause to be understood in the proper spirit, etc. in proper perspective to the obtaining fact-situation. The other factors to be considered as to whether there is any gross negligence, lack of bonafideness, reasonableness, inordinate delay, conduct, behaviour, attitude of the applicant and ....
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....as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 13. Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil[20] wherein it has been opined that a distinction mus....
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....e grounds of illness of parents of the applicant has not been supported with any documents even though it was undertaken by the applicant that the relevant records shall be produced at the time of arguments (Para 6 of the application). (vi) No sufficient reasons have been explained by the applicant except stating about her father's illness & death in 2017 and illness of her mother subsequent to the death of father. There is no proper explanation for 1350 days delay in filing the application except the above. (vii) Even the other two counsels engaged by the appellant did not appear continuously for three dates. (viii) The appeal was then a part-heard matter. The Full Bench of this Tribunal, in the interest of justice, did not pass any adverse order and thus gave proper opportunity to the appellant to hear the appeal on merit. (ix) Before the conclusion of argument the matter has been placed before Division Bench from Full Bench. Prior to the date of passing of the order dated 19.08.2015, the then Hon'ble Chairperson Justice Anil Kumar tenure was over in the month of July, 2015. (x) There is an unexplained inordinate delay of 1350 days that attracted the doctrine of preju....