Kay Kay Texo Fab Pvt Ltd v. M/S Navkar Furnishing & Ors

SUNITA GUPTA, J NOVEMBER 28, 2016/rd

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:28th November, 2016 + KAY KAY TEXO FAB PVT LTD ..... Appellant Through Mr Duli Chand and Mr R.C. Madan, Advs. versus M/S NAVKAR FURNISHING & ORS ..... Respondent Through None % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA : SUNITA GUPTA, J. (ORAL) CM 44014/2016 (delay) 1. This is an application under Order XLI of Code of Civil Procedure read with Section 5 of the Limitation Act seeking condonation of 536 days in filing the present appeal filed against the order passed by learned Additional District Judge (West) on 26.03.2015. By the impugned order, the suit for recovery of Rs.4,53,888/- filed by the appellant herein / plaintiff was ordered to be returned under Order VII Rule 10 of the CPC on the ground that the court lacked the territorial jurisdiction to try and entertain the suit. 2. Feeling aggrieved, the present appeal has been preferred by the appellant. The appeal is accompanied by application seeking condonation of delay in filing the appeal. 3. For the sake of ready reference, the reasons for delay in filing the appeal, as narrated in the application, are reproduced as under: "3. That the present counsel was engaged by the appellant on 15.04.2015 in regard to file the present appeal. 4. That the counsel is aged above 82 years old and suffering from various old age ailments as well as suffering from high sugar. After receiving the brief of the present case the counsel suffered a lot and inadvertently the documents pertaining to the present appeal tagged with some other documents / file and due to old age and loss of memory the present counsel could not able to recollect the memory to file the present appeal and further during that period the counsel was taking bed rest at home. It is further worthwhile to mention here that the counsel also changed his residence as well as contact number. 5. That on the occasion of Diwali while whitewashing and dusting the office files / documents, the present counsel found a bundle of tagged with present documents of the appeal and thereafter the counsel contacted the appellant and felt sorry about the delay of the file the present appeal due to loss of memory and the appellant having faith of words of the counsel and further requiring to file the present appeal without any further delay." 4. It is pleaded that the appellant would suffer irreparable loss and injury in case the delay is not condoned. 5. Having heard Mr. Duli Chand, learned counsel for the appellant, the court is of the view that the appellant has failed to make out a case for condonation of delay in filing the appeal. 6. The basic submission of learned counsel for the appellant is that he is aged about 82 years old and suffering from various old age ailments and was taking bed rest at home. He had also shifted his residence as well as contact number. During the occasion of Diwali, he found the documents for preferring appeal and thereafter contacted the appellant and filed the appeal. It is submitted that one opportunity be granted to the appellant to contest the appeal on merits and the delay in filing the appeal be condoned. 7. Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the Court to admit any application or any appeal after the prescribed period if it is satisfied that the appellant or applicant had sufficient cause for not preferring such appeal or application within the prescribed period. It is settled law that for the purpose of condonation of delay, there must be some cause which can be termed "sufficient cause". The question for consideration is whether the averments disclosed any sufficient cause to condone the inordinate delay of 536 days in filing the appeal. 8. In Ajit Singh Thakur Singh and anr. vs. State of Gujarat [ (1981) 1 SCC 495 ] Supreme Court observed : "It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But