2020 (1) TMI 190 - AT - Money Laundering

Restoration of appeal - delay in filing of restoration application - Default in appearance - applicant submitted that the argument from the side of the appellant was over and the argument from the side of the respondent was yet to be completed - HELD THAT - Admittedly the restoration application has been filed without any application for condonation of delay. The appeal was dismissed for default on 19.08.2015. The application for restoration has been filed on 02.05.2019. There is a delay of about 1350 days. 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 the Vakalatnama and represented the appellant in the appeal on various occasions could have appeared on 19.03.2015, 30.04.2015 19.08.2015. 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 others while considering an application for condonation of delay. There is an inordinate delay in filing the restoration application which is not accompanied with either any application for condonation of delay or any prayer in the restoration application to condone the inordinate delay - there are no merit in the application for restoration of appeal - appeal dismissed.

Summary

Issues Involved:
1. Application for restoration of appeal dismissed for default.
2. Explanation for non-appearance and delay in filing the restoration application.
3. Examination of judicial discretion and precedents on condonation of delay.

Issue-wise Detailed Analysis:

1. Application for Restoration of Appeal Dismissed for Default:
The appellant, M/s. Bharat Glass Tubes Ltd., filed an application for the restoration of appeal no. FPA-PMLA-186/LKW/2011, which was dismissed for default on 19.08.2015. The appellant requested the recall of the dismissal order, restoration of the appeal to its original number, and a hearing on the merits. The appellant contended that the appeal was admitted and notices were issued to the respondent, with regular appearances by counsel until 28.11.2014. However, due to counsel's personal circumstances, including the illness and subsequent death of her father, the appeal went unattended, leading to its dismissal for non-appearance.

2. Explanation for Non-Appearance and Delay in Filing the Restoration Application:
The appellant's counsel argued that the non-appearance was due to personal reasons, including her father's prolonged illness and death, and her mother's subsequent illness. The counsel claimed that these circumstances caused her to lose track of the matter. It was only upon reorganizing her office that she discovered the appeal had been dismissed. The application for restoration was filed on 02.05.2019, after a delay of about 1350 days, without any application for condonation of delay. The respondent opposed the restoration, citing precedents that emphasize the need for proper explanation for delays and the importance of judicial discretion in such matters.

3. Examination of Judicial Discretion and Precedents on Condonation of Delay:
The Tribunal examined the circumstances leading to the dismissal of the appeal and the reasons provided for the delay in filing the restoration application. The Tribunal noted that the appellant's counsel did not produce any hospitalization records to support her claims of personal hardship. The Tribunal also highlighted that the restoration application was filed without an affidavit from the appellant or an application for condonation of delay. The Tribunal referred to the Supreme Court's guidelines in "Esha Bhattacharjee v. Raghunathpur Nafar Academy" and other relevant judgments, emphasizing that judicial discretion must be exercised within reasonable bounds and that sufficient cause must be shown for delays.

Conclusion:
The Tribunal concluded that the application for restoration lacked merit due to several factors, including the absence of an application for condonation of delay, lack of sufficient reasons for the delay, and the appellant's failure to follow up on the appeal for an extended period. The Tribunal also noted that the respondent had acquired valuable rights due to the dismissal of the appeal, and restoring the appeal would cause prejudice to the respondent. Consequently, the application for restoration of the appeal was dismissed.