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TMI Blog2011 (3) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... S. R. BANUMATHI AND M. DURAISWAMY, JJ. V. Raghavachari and AR. M. Arunachalam for the Appellant. M. Aravind Subramaniam for the Respondent. JUDGMENT R. Banumathi, J. This appeal arises out of the order of the learned single judge in Application No. 4291 of 2010 in C. S. No. 698 of 2001 dated November 19, 2010, dismissing the application filed by the appellant under section 5 of the Limitation Act, 1963, declining to condone the delay of 1,932 days in filing the application to set aside the ex parte decree dated April 5, 2005. 2. The respondent/plaintiff filed C. S. No. 698 of 2001 for recovery of Rs.13,94,815 along with subsequent interest. In October 2001, the appellant engaged a counsel to represent their case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wanathan, an employee of the appellant-company on August 2, 2006, for which there had been no response. Therefore, according to the respondent even though the appellant had knowledge of the decree on August 2, 2006, they have not chosen to file the application and therefore, the delay is not satisfactorily explained. Further according to the respondent, the appellant has not included the name of the respondent in the list of creditors filed before the BIFR. 4. Pointing out that the letter has been sent by the respondent on July 31, 2006 and that in spite of receipt of the same, the appellant had not responded to the same, the learned single judge held that the appellant had knowledge of the decree. The learned single judge further held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated September 6, 2001, the appellant/defendant-company had been declared as sick company by the BIFR and a case has been registered under No. 311 of 2001 and the same is pending before the BIFR and in view of the bar under section 22 of the SICA, no proceedings could continue and the proceedings shall remain suspended and the decree passed on April 5, 2005, is non est. 8. Per contra, learned counsel for the respondent/plaintiff has submitted that the respondent has not received any communication either from the BIFR or from the appellant about the pendency of Case No. 311 of 2001. According to the respondent, its name has not been included in the list of creditors filed before the BIFR and the decree passed by this court in C. S. No. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the party is not vigilant about his right, he must explain the delay. The conduct of the party seeking condonation is a relevant factor to be considered by the court in allowing or refusing the condonation. The expression "sufficient cause" under section 5 of the Limitation Act, 1963, to receive liberal construction so as to advance substantial justice. Ordinarily, delay in filing the appeal should be condoned, when no negligence in action or want of bona fides is imputable to the applicant and that in an application for condonation of delay "sufficient cause" should receive liberal construction so as to advance substantial justice. While condoning the delay, the discretion has to be exercised to advance substantial justice. 12. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as April, 2006. In the typed set of papers, the appellant had also produced the copy of resignation letter of the said Kasi Viswanathan and also Form No. 10 filed by the appellant under the Employees' Provident Funds Scheme. It is seen from Form No. 10 that Kasi Viswanathan is said to have left the service on May 31, 2006. Even though the said letter dated July 31, 2006, addressed to the appellant-company, since the same is said to have been received by the erstwhile employee (Kasi Viswanathan), in our considered view, no negligence can be attributed to the appellant. 15. When the defendant has alleged non-receipt of the said letter dated July 31, 2006 and urges the same for not taking steps, the reasons stated by the appellant do not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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