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TMI Blog1988 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... parently mistake for the impugned order) at the end of April when he came down to Bombay after prolonged illness. In para 4 of that application, it was stated "the applicant states that when the said adjudication order was passed, the applicant was seriously ill at Bangalore and under strict medical advice was undergoing treatment at Bangalore from September, 1986 onwards till February 1987, and as such, the order-in-original which was despatched by the Department on 19-9-1986 and received by the the applicant's servant in the first week of October, 1986 was notwithtn the knowledge of the applicant inasmuch as no responsible person save and except an illiterate servant was present at the applicant's flat at Bombay between September, 1986 and .February, 1987. After the applicant recovered from the illness the applicant came to Calcutta towards the end of February, 1987 in connection with the business of spices and building construction. Thereafter, the applicant in the month of April, 1987, went to Bombay when the applicant came to learn that an adjudication order had been passed by Shri S. Biswas, in terms whereof a fanciful and exhorbitant penalty of Rs.one crore has been imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad drafted and filed the condonation application had failed to produce the medical certificate and other required documents. He requested that the applicant should be given opportunity to produce those documents. His request was granted and the hearing was adjourned to 16-12-87. In the meantime, a supplementary application in support of the earlier condonation application was filed. In the supplementary application it was urged that the service on the illiterate servant in the first week of October, 86 is not legal and valid service. It is further stated that on or about 1st December, 1985 the applicant met with a serious car accident and initially he took treatment at Panvel and later at Breach Candy Hospital and subsequently at Shushursha Citizens Co-operative Hospital, till 9th December, 1985. It was then stated that after the said accident the applicant used to fall sick of and on necessitating treatment and bed rest. It was further stated that during the adjudication proceeding the applicant fell seriously ill and he was under treatment at the Breach Candy Hospital from 20th September, 1986 till 3rd November, 1986 when the applicant was discharged from the said hospital. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings and on whom the adjudication order was served had not intimated the applicant as to the result of adjudication. Shri Farook replied that the learned advocate did not intimate the appellant. He further replied that the inaccuracies in the earlier application were made by the advocate who drafted the application and he undertook to file the affidavits of the said two advocates. The hearing was, therefore, adjourned to 11 -1 -88. 7. On 11 -1 -88, Shri Farook submitted that the affidavits of the advocates could not be filed. We heard arguments. 8. Shri Farook while reiterating the statements contained in the supplementary application contended that the service of the order on the servant is not service on the appellant, since the appellant had come to know of the impugned order only in April, 87 the appeal filed on 15-6-87 is within time. Shri Farook also submitted that the applicant had been diligent and on coming to know of the impugned order he had taken all steps for preferring the appeal. The applicant should be given a chance to contest the matter on merits. Shri Farook submitted that the penalty imposed is one crore. The substantial justice demands that the delay if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 10. We have considered the submissions made on both the sides, and perused the records of the case. Since a penalty of Rs. 1 crore had been imposed on the applicant in the impugned order we approached the matter with liberal outlook. The impugned order was passed on 30-6-86 and despatched on 29-9-86. The party aggrieved by the order is required to file an appeal within three months from the date of communication of the order. For reasons best known to the applicant against column No. 3, which required the applicant to mention the date of communication, the applicant did not mention the date. In the condonation application filed along with the appeal, the applicant categorically stated that when the adjudication order was passed he was seriously ill at Bangalore and under strict medical advice undergoing treatment at Bangalore from September, 1986 onwards till February, 1987. Therefore, the impugned order which was despatched on 19-9-86 received by the applicant's servant in the first week of October, 86 was not within the applicant's knowledge. In para 5 of the application the applicant stated that he was undergoing treatment at Bangalore in the first week of October, 1986 til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when the adjudication order was passed the appellant was seriously ill at Bangalore and under strict medical advice and was undergoing treatment from September, 86 onwards till February, 1987. Having regard to the averment contained in the appeal the condonation application filed along with the appeal and the sworn statement made on 20th November, 87 affirming the statement made earlier, we cannot accept Shri Farook's contention that the statement made in the supplementary application is correct. The applicant was given an opportunity to file the affidavit of an advocate who drafted the appeal and earlier condonation application. The applicant undertook to produce the affidavit but neither the affidavit nor memorandum of facts of the advocate was filed. As stated earlier, the supplementary application is not supported by any affidavit. 12. In the condonation application filed along with the appeal on 15-6-87 it was specifically stated that the notice was received by the servant of the applicant in first week of October, 1986. The same statement was also made in the supplementary application. But in the supplementary application it was stated that the servant of the applicant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December, 86 the applicant was somewhat in good health and he visited three cities and his visit to Bangalore was to explore the business prospects besides for a change. When such is the disposition of the applicant it is difficult to believe that he would not have made any enquiry as to what became of the adjudication proceedings. At one place of supplementary application it was stated that when the applicant returned to Bombay on 22nd April, 87 he came to learn from his learned advocate that an adjudication order had been passed. If that be so it is not clear why the applicant did not take immediate step to get an appeal prepared and filed. It may be stated here copy of the adjudication order was also served on the advocate. Therefore, the applicant could have obtained the copy from the advocate. 15. Coming to the legal contentions raised by Shri Farook, namely that there had been no service of the order on the applicant and the service on the servant is no service on the applicant and since the applicant had come to know of the order only in April, the appeal filed within 3 months from the date of knowledge is within time. Excepting the applicant's own statement there is no ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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