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TMI Blog2017 (5) TMI 1662X X X X Extracts X X X X X X X X Extracts X X X X ..... flected that they have started contacting the lawyer when the representative of the court visited them on 20.09.2016. Such negligent litigants are bound to suffer. It appears that either the appellant company is concealing true facts of its knowledge of dismissal of the suit or they have been careless and negligent in pursuing their case in the court of law. Be that as it may, the appellant has failed to make out any justification for condonation of delay. There is no infirmity in the impugned judgment and decree of the learned trial court - the appeal is dismissed with no order as to cost. - RFA 497/2017 - - - Dated:- 28-5-2017 - Mr. Vinod Goel, J Mr. J.P.N. Gupta, Advocate with Mr.Pankaj Kumar Singh, Mr. I.M.Singh, Advocate for The Appellant JUDGMENT: Vinod Goel, CM No. 18654/2017 (for condonation of delay in re-filing the appeal) This is an application for condonation of 101 days‟ delay in re-filing the appeal. Heard. For the reasons stated in the application, the same is allowed. The delay in re-filing the appeal is condoned. The application is disposed of. CM No. 18652/2017 (for condonation of delay in filing the appeal) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sapp messages dated 01.02.2016, 04.02.2016, 20.09.2016, 23.09.2016, 10.10.2016, 11.10.2016 and 22.10.2016, but of no avail. It is alleged that their new counsel inspected the file of the case on 17.10.2016 and they moved an application under Order XXI Rule 26 of CPC before the Executing Court. They also lodged a complaint against previous counsel Sh. Pradeep Kumar, Advocate to the Bar Council of India on 05.11.2016. They applied for obtaining certified copies of all the documents and order-sheets on 16.11.2016, which were supplied on 23.12.2016. 5. It is submitted by the learned counsel for the appellant/applicant that the counsel of the appellant/company has been negligent in not attending the court proceedings and not informing them about the progress of the case and for the negligence of the lawyer, the appellant company should not be made to suffer and the delay in filing the appeal may be condoned. 6. I have heard the submissions of the learned counsel for the appellant/applicant and perused the record. 7. It was a summary suit under Order XXXVII CPC filed by the respondent/plaintiff on 23.09.2011. The appellant/defendant company filed an application for leave to defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint lodged in the Bar Council of India. The Photostat copies of the messages placed on record bear the date as 1 Feb 2016, 4 Feb 2016, 20 Sep and 10 Oct and on other messages no date is there. 10. In these presents, the allegation of the appellant/defendant company is that their lawyer has stopped appearing after 10.11.2014. It is also alleged that after the impugned judgment and decree dated 31.08.2015, their lawyer told them that the suit of the respondent/plaintiff company has been dismissed and they requested to supply them copies of order and decree. These allegations are not found mentioned in the complaint lodged with the Bar Council of India. If their lawyer stopped appearing from 10.11.2014, the appellant/defendant company should have contacted their lawyer or engaged some other one in the matter or at least they should have started appearing in person but they did not bother to inquire from their previous counsel as to why he stopped appearing w.e.f. 10.11.2014. If they were informed by their counsel after the decision in the suit and copy of order was not supplied, they should have gone to lawyer personally or to court to obtain copies of orders or should have ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : - ........It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights...... 13. In the present case after leave to defend the suit was granted, the written statement dated 05.12.2012 along with affidavit of Mr. Pravesh Mishra, AR was filed on 10.12.2012. The appellant company alleged that their counsel stopped appearing after 10.11.2014 and after decision of the impugned judgment and decree, they were informed by the learned counsel that the suit has been dismissed and they requested the counsel to supply them the copies of order. Though, it has been alleged that the counsel despite several requests did not supply them the copies of the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of ₹ 31,00,000/-. The appellant company has acknowledged the balance amount payable by them to be ₹ 14,82,213/- vide its letter dated 31.03.2010. The respondent/plaintiff company sent a legal notice dated 24.05.2011 to the appellant claiming the balance amount with interest. Despite several requests the appellant did not make and thus the respondent claimed the balance amount of ₹ 14,82,213/- with interest @ 12% per annum as per custom in the commercial transactions from the due date till date of actual payment. The suit amount of ₹ 17,34,190/- as claimed by the respondent company includes principal amount of ₹ 14,82,213/- and ₹ 2,51,977/- as interest w.e.f. 01.04.2010 till the filing of the suit. 3. In its written statement, it is, inter alia, pleaded by the appellant that the suit has been filed on the basis of the bills dated 10.02.2009 and letter dated 31.03.2010 issued by an unauthorized persons and the bills do not fall within the definition of Bill of Exchange . It is also alleged that the appellant/defendant company was not satisfied with the work of the plaintiff company and they have settled the entire amount with the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f legal notice. 8. It is submitted by the learned counsel for the appellant that suit has been filed on the basis of two invoices Ex.PW-1/3 and Ex.PW-1/4 and the letter dated 31.03.2010 Ex.PW-1/5. Learned counsel does not dispute that services of respondent were taken by them. He does not dispute the invoices raised. But he argued that the letter Ex.PW-1/5 dated 31.03.2010 is a forged documents and has been issued by some unauthorized person. He argued that matter was settled and they paid ₹ 31,00,000/- in full and final. But no such document of settlement has been filed either in Trial Court or with the appeal. 9. The respondent/plaintiff has placed on record two Tax Invoices (Ex.PW-1/3 and Ex.PW-1/4) for ₹ 32,93,977/- and ₹ 13,88,236/- respectively, both dated 10.02.2009 issued to the appellant company, which reflect that even the payment of VAT of ₹ 2,88,642/- and ₹ 1,21,647/- and Service Taxes of ₹ 1,18,920/- and ₹ 50,119/- have been paid. These invoices are not disputed by the appellant. The total amount of invoices comes to ₹ 46,82,213/-. The Managing Director of the appellant company Sh. Pravesh Mishra in Para no. 3 of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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