TaxTMI 
TaxTMI 
2026 (1) TMI 1669
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....the applicant in C.A. no.419/2021 by directing the respondents to cooperate in the mutation of title in favour of the Company in liquidation. 3. The office had raised objection, inter alia, that no application had been filed for condonation of delay. The counsel submitted before the Registry that I.A. for condonation of delay is not required as per Chapter VI-A, Rule 6 of the High Court of Karnataka Rules, 1959 [HCK Rules] the rules applicable to RFA shall apply to OSA. As such, the period of limitation is 90 days and the appeal/OSA has been filed within limitation. Therefore, the matter was placed before the Court on 01.12.2025 for orders on the office objections. 4. On 01.12.2025 the learned counsel for the respondents raised an objection of limitation stating that, in view of the provision of Article 117 of the Schedule to the Limitation Act, 1963 read with Section 483 of the Companies Act, 1956 [Act, 1956] in light of Chapter VI-A of the HCK Rules, the period of limitation would be 30 days. The learned counsel for the Official Liquidator [OL] sought adjournment to study the matter. 5. On 08.12.2025 an application was filed on behalf of the OL seeking condonation of del....
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...., the appellants applied for the copy on 04.11.2025 and obtained a copy on 06.11.2025. As such, there is more than 41 days of delay in preferring the above appeal. It is stated that therefore, the application seeking 20 days delay condonation, is not in accordance with law. It is stated that obtaining a certified copy after limitation is unexplained in the affidavit of the Official Liquidator. Non-availability of additional documents would not come in the way of obtaining certified copy of the impugned order. 10. It is stated that the number of cases being handled by the OL cannot be a reason for condonation of delay; the appeal memo was not accompanied by any application seeking condonation of delay in view of Order 41 Rule 1(3) [Karnataka amendment] read with Rules 7 & 8 in Chapter VI of the HCK Rules. In the absence of such an application, the appeal itself is not maintainable in law and consequently, the I.A. for stay is also not maintainable. The subsequent filing of an application for condonation of delay would also not cure the defect in non-filing along with the appeal. It is stated that the present application for condonation of delay is only an attempt to cure the defe....
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....ee or order 117. From a decree or order of any High Court to the same Court. Thirty days. The date of the decree or order 15. Chapter VI-A of the HCK Rules relates to OSA. Rule 6 therein provides that subject to the provisions of this Chapter, the Rules applicable to Regular First Appeals and the provisions of Order 41 and 41-A of the CPC shall, as far as may be, apply to OSAs. Order 41 Rule 1, sub-Rule (3) [Karnataka High Court Amendment] reads as follows: "ORDER XLI APPEALS FROM ORIGINAL DECREES 1. Form of appeal. What to accompany memorandum: (1) & (2) xxx xxx xxx xxx xxx (3) When an appeal is presented after the period of limitation prescribed therefore it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period, and the Court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order or on the ground that it is not satisfied as to the sufficiency of the reason for the delay) until notice has been given to th....
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....must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system. 19. In this case, none disputes the correctness and authenticity of the depositions recorded on commission but there is omission of witness' signature thereon. The question is: does reception of these depositions in evidence violate Rule 4 ibid in a manner which is impermissible or this omission can be overlooked as insignificant since correctness and authenticity of the depositions is undisputed ? We have no doubt ....
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....e intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design, and the consequences which would follow from construing it the one way or the other." 22. It cannot, therefore, be doubted that the word "shall" used in the expression "deposition shall be signed by witness" in Rule 4 ibid has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from construing it as mandatory or directory. 23. If the word "shall" used in this expression is construed as mandatory, non-compliance of which nullifies the deposition, drastic consequence of miscarriage of justice would ensue even where omission of the witness' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed. On the other hand, if the word "shall" used in this expression is treated as directory, the court will have power to prevent miscarriage of justice where the omission does not cause any prejudice and the defect is only technica....
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....t for satisfying the court that she had sufficient cause for not filing the appeal within limitation. In such a case, the Respondent would be without any information about pendency of the appeal. The Respondent may even alter his position during the period between filing of the defective appeal, and, filing of the application/affidavit explaining sufficient cause. Such cannot be the intent of the procedure provided for filing the required application/affidavit along with an appeal presented after the expiry of the period of limitation under sub-Rule 3 (Karnataka amendment) of Rule 1 of Order 41 CPC or of Rule 3-A of Order 41 CPC. Apparently, the provisions were made with the intention so that an appeal filed beyond the limitation provided, should not be kept in the docket of the appellate court indefinitely as a defective appeal for want of the prescribed application supported by an affidavit. The aforementioned provisions of Order 41 CPC find echo in Rules 7 and 8 of Chapter VI of the HCK Rules. 22. Therefore any leeway or concession if provided to a party whose defective appeal is not accompanied by the prescribed application/ affidavit to file such application/ affidavit subs....