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Condonation of delay in filing the Appeal


CM No.3635/2010 in FAO(OS) No.139/2010

A.L. MEHTA …..Appellant through Appellant in person
NIIT LIMITED …..Respondent through Mr. Sandeep Sethi, Sr. Adv. with Mr. Rajat Navet & Mr. Nikhil Bhalla, Advs.

Date of Hearing: August 11, 2010
Date of Decision: August 18, 2010


1. By this application, the Appellant prays for the condonation of delay of 39 days in filing the Appeal. The contents of the application read thus:-
1. That the petitioner has filed appeal against Order dated 13.10.2009, as the order dated 13.10.2009 is contrary to law & which emanates out of an illegal & void agreement, unenforceable in law.

2. That the petitioner had applied for a copy of the aforesaid order on 14.10.2009 on an urgent basis, which could be made ready only on 29.10.2009, as the
file during the interim period was in the Court. That there has been a delay of 39 days in filing the appeal, for certain unavoidable reasons, including the time taken by the advocate to draft the petition and the interim vacation in the Court.

In the above circumstances, it is prayed that the delay of 39 days may please be condoned.
2. As is to be expected, the Respondent has strongly opposed the condonation of delay and has justifiably stated that no grounds or sufficient reasons have been disclosed in the application in support of the prayer for condonation of delay. What ought to have been stated in the application itself has, however, been mentioned in the Rejoinder. The Appellant pleads that he was awaiting the outcome of seven Writ Petitions filed by the Respondent seeking the quashing of proceedings initiated against it by the Income Tax Authorities. The Appellant has argued that the delay was caused because of the pendency of these Writ Petitions, which were eventually disposed of vide Orders dated 11.12.2009. The Income Tax Authorities were directed by the Writ Court to pass fresh orders under Section 263 of the Income Tax Act, 1961. We see no causal relationship between these two happenings.

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3. The Appellant has cited several Judgments of the Supreme Court to the effect that meritorious matters should not be thrown out because of law of limitation, as this would lead to justice being defeated [Collector, Land Acquisition Anantnag –vs- Mst. Katiji, 1987 (28) ELT 185 (SC)]. Several Judgments of the Supreme Court enunciating that in law the period of delay may not be wholly determinative of sufficient cause for condondation of delay [N. Balakrishnan –vs- M. Krishnamurthy, AIR 1998 SC 3222, State (NCT of Delhi) –vs- Ahmed Jaan, (2008) 14 SCC 582 and O.P. Kathpalia –vs- Lakhmir Singh, 1984 (4) SCC 660] have been relied upon. In the very recent Judgment, dated 9.6.2010, their Lordships have, in Civil Appeal No.2395/2008 titled Improvement Trust, Ludhiana –vs- Ujagar Singh, opined that – “unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned”. While the Appellant has been lax in his approach, we cannot detect any malafides in his conduct.
4. We will briefly dwell on the facts of the case. The Appellant had received a sum of ` 69,00,000/- in full and final settlement of all his claims against the Respondent Company. A Memorandum of Understanding was signed on 11.7.2006, the terms of which, inter alia, are that the Appellant would not take any action which would harm the Respondent, that the Appellant would keep confidential all the information that he had received while in the service of the Respondent, and that the Appellant would not pursue any complaints against the Company. Since these covenants have been violated, the Respondent has filed a Suit for declaration, injunction, recovery and damages, in the course of which the impugned ad interim injunction came to be passed.

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5. Having perused the opinion of the Hon’ble Supreme Court in its various pronouncements, we are persuaded to condone the delay, largely because it is of a relatively short period of 39 days only and no malafides are attributable to the Appellant.

6. The application is allowed and the delay is condoned, subject to the payment of ` 10,000/- payable by the Applicant within two weeks in favour of Legal Aid for Poor, Women, Children and SC&ST, Delhi High Court, New Delhi.

7. Renotify for consideration on 30.11.2010.
August 18, 2010 JUDGE

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