Yogesh Khanna, J
CM No.41382/2019
1. This application is moved by appellant / applicant under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 631 days in preferring
this RFA.
2. The reasons for delay are the earlier counsel Mr.Rohit Nagpal, who was representing the appellant before the learned Trial Court did not file an
appeal in time and it was only when the respondent No.1 filed an execution proceedings before the learned Executing Court and the appellant received
its notice, it contacted Mr.Rohit Nagpal, Advocate to prefer an appeal and then filed this appeal on 04.07.2018 vide Diary No.162107/2018. Certain
objections were raised by the registry and it was refiled with an application for delay condonation. It is alleged the delay was also caused due to
untimely demise of one Mr.Puneet Kharbanda, an associate of Mr.Rohit Nagpal. The objections raised by the registry were not removed, hence the
appeal could not be listed for a long time.
3. It is alleged the appellant then took a decision to replace Mr.Rohit Nagpal, Advocate and instead had engaged the present counsel on 09.09.2019
who discovered the appeal is still lying under objections and he took immediate steps to put appearance before the learned Executing Court and
redrafted this appeal; hence a delay of 631 days in preferring the appeal had occurred and it be condoned.
4. The respondent No.1 filed an reply to application. Heard.
5. There is no explanation given in the application for not filing an appeal between 21.09.2017 till 04.07.2018. Per law each and every day’s delay
need to be sufficiently explained. Further even after the appeal being filed on 04.07.2018, it could never be listed as was lying under objections.
Though the delay is also alleged due to demise of Mr.Puneet Kharbanda but even his date of death is not given in the application. It is not explained
how his death had caused the delay. Neither the appellant nor his counsel ever cared to check the listing of appeal for odd two years. Admittedly, no
complaint has been filed against Mr.Rohit Nagpal, Advocate for his alleged laxity.
6. It is to be noted the appellant rather filed an affidavit before the learned Executing Court stating interalia it had no assets within the local limit or
jurisdiction, but respondent No.1 came to know through Ministry of Corporate Affairs the appellant had shares worth Rs.3,10,745,707/- of M/s.Jubliant
Life Science Limited; Rs.2,00,000/- of M/s.Shivalik Solid Waste Management Limited; Rs.65,422,150/- of M/s.Veejay Buildwell Private Limited.
7. Admittedly, an application dated 04.07.2019 under Order XXI Rule 11CPC for issuance of warrants of arrest of the directors of the appellant
company was allowed on 22.07.2019 but none of them ever turned up before the learned Executing Court and then an application for issuance of
warrants of arrest against Ms.Shreya Jain, the another director was filed. The recovery suit, admittedly, is qua pending salary and other dues of the
respondent, wrongly withheld by appellant.
8. Alongwith rejoinder the appellant has filed various emails including dated 21.04.2018 and 23.04.2018 to show its concern to file this appeal, but a
bare perusal of such emails would reveal they were aware of the execution proceedings viz No.69/2018 and were seeking advice of their counsel to
either file an appeal or not. Interestingly, on record there is an email dated 13.02.2019 and it says the Court has directed the appellants to furnish the
details of their assets in Delhi and in order to avoid it they will have to file an appeal immediately. It rather goes in line with the contentions raised by
respondent No.1 the appellant were more concerned in avoiding the payments than were in contesting the judgment on merits.
9. Though in N.Balakrishnan vs. M.Krishnamurthy (1998) 7 CC 123, the “sufficient cause†under Section 5 of the Limitation Act was held to
receive liberal construction so as to advance justice and further in C.K.Prahalada vs. State of Karnataka (2008) 15 SCC 57 7the Court held if there
are various deficiencies in the impugned judgment even condonation of delay of 2487 days can be granted and further in Improvement Trust, Ludhiana
vs. Ujagar Aingh and Ors. (2010) 6 SCC 786 it was held such application be allowed if the appellant do not gain anything by not filing the appeal
within the period of limitation and in Vijaylakshmi vs. Nachimuthu Gounder and Ors. C.R.P. NPD No.515/2013 decided on 27.11.2017 by Madras
High Court, the delay of 3658 days was condoned by imposing a mere cost of Rs.3,000/- as it was on account of misguidance of the counsel, hence, it
is urged there being various deficiencies in the impugned judgment the delay be condoned.
10. I have also examined the impugned judgment and the evidence led by the parties. Admittedly the respondent was appointed as a Vice President
(Sales and Marketing) w.e.f. 10.03.2003 vide an appointment letter dated 04.02.2003 by the appellant company and it was only because of his good
performance he was promoted as President (Sales and Marketing). There is a reference of a letter dated 28.03.2006 written by the Managing
Director of the appellant company to the respondent wherein she has alleged the track record of the respondent is excellent and he has maintained
high standards of performance. However, later the relationship between the MD and the respondent deteriorated which led to tendering of resignation
by the respondent vide an email dated 17.05.2006.
11. A bare perusal of the impugned judgment would show the learned Trial Court had rather rejected three claims of the respondent viz. a) the three
months salary viz. Rs.5,29,650/- of the notice period as per terms of the appointment letter, such salary for notice period was payable only upon
termination of his service by the appellant company; b) the compensation of Rs.1,17,700/- for 20 days leave was also declined on the ground no rules
of the company were proved in this regard; and c) even the damages claimed to an extent of Rs.20,00,000/- were not granted as the respondent failed
to prove any breach of the terms of his employment agreement.
12. It was only his performance bonus of Rs.10,00,000/-, though refused per letter dated 01.05.2005 by the appellant, was granted by the Court.
Admittedly the performance bonus was not paid for the year 2005-6. Further admittedly the appellant could not prove the top line and bottom line
tracks of achievement and even did not complain of not adhering to such standards during the service of the respondent. Rather, the respondent was
promoted in the year 2006 because of his excellent track record and upon his showing high standards of performance. Thus, while rejecting three
claims of the respondent the learned Trial Court had allowed only one claim of Rs.10,00,000/- with interest to the respondent. Hence the impugned
judgment does not suffer from any infirmity and is a reasoned one. The appellant cannot make it a base to get the delay condoned.
13. Coming to the conduct of the appellant, including filing of wrong affidavit(s) alleging, interalia, it does not have any asset in Delhi merely to avoid
legal claim of the respondent and its conduct of ignoring arrest warrants issued against its directors is also not above board. The correspondence
between Sh.Rohit Nagpal, their earlier counsel does show that as late as in April, 2018 the appellant was merely seeking an advice of its counsel to
file an appeal and the counsel replied to avoid furnishing the details of their assets to the Court, they need to file an appeal immediately. This conduct
reveal the appellant was more concerned to avoid payment and rather to contest it, hence this is not a case where the phrase “sufficient causeâ€
needs a liberal construction. Even otherwise there being no infirmity in the impugned judgment and there being no sufficient explanation forthcoming
for the delay caused, the application has no merit and is accordingly dismissed.
14. Since the application for condonation of 631 days in filing/refiling appeal is dismissed; consequently, the appeal and pending application(s) are also
dismissed. No order as to costs.
