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TMI Blog2020 (1) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... n-appearance. (vi) That the default in appearance or delay in filing restoration application is totally inadvertent and occasioned on account of reasons recorded supra which the Hon'ble Appellate Tribunal may appreciate is neither deliberate nor contumacious. (vii) That all other cognate appeals preferred by various Appellants against contextual Order are still pending and now listed for hearing on 06.05.2019 and 11.07.2019. (viii) That the Applicant has a good case on merit as the attached property was purchased years before the alleged offence under PMLA purportedly committed on 2009 and as the property at the time of provisional attachment itself was under mortgage to Union Bank of India and therefore the impugned Order being contrary to law propounded by the Hon'ble Appellate Tribunal in the matter of IDBI Bank Ltd., Vs. Deputy Director of Enforcement as reported in 2018SCCOnline ATPMLA16 and in the matter of Naresh Grover Vs. Joint Directorate of Enforcement as reported in (2018)100Taxman.com377(PMLA-AT), New Delhi, Applicant has a meritorious case with bright chance of success, especially as Applicant has neither been named in the FIR nor in the Chargesheet in the predi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the appellant company were indulged and knowingly assisted in the process of activity connected with the proceeds of crime and projected it as untainted property under the garb of genuine and bonafide investments. The Ld. Adjudicating Authority confirmed that fact that these properties were involved in money laundering and hence are proceeds of crime and are liable for attachment. d) That, on subsequent date i.e. 19.08.2015, it was observed by the Ld. Appellate Tribunal that no one on behalf of the appellant was present to represent the case even after taking it up again and again for hearing. Therefore, Ld. Appellate Tribunal dismissed the appeal vide its order in default of appearance of the Appellant or its Counsel. e) That, the instant application for restoration of appeal was never filed in last 44 months. f) In view of this, the impugned property has become the case property pending adjudication only before the Spl. Court. In this connection, Para 169 of judgement dated 02.04.2019 delivered by Hon'ble High Court of Delhi into Crl. Appeal 143 of 2018 & others is reproduced below: "169. In view of above-noted legislative scheme, it must be clarified that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & submitted that the appellant has never explained any valid reasons instant application for restoration of appeal and that the reason of non-availability of its counsel, non-filing of the restoration application in last 44 months and that the delay of about 1325 days is misleading, deliberate, mischievous and intentional. During the course of arguments, it was contended by the learned counsel for the respondent that some of the appeals arising out of same ECIR have already been dismissed and that is the reason why now near about four years from the date of the dismissal of the present appeal the applicant is trying to revive the appeal to protect the tainted properties. 7. Heard both the learned counsels and also gone through the materials available on record and the relevant judgments cited. Before going into the merits of the application it is felt necessary to examine the situations which led to the dismissal of the appeal. 8. It is seen from the record on dated 21.08.2014 that the arguments were concluded by the learned counsel for the appellant and posted to 29.08.2014 for further arguments on the prayer made by the learned counsel for the respondent. The said arguments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.03.2015 Counsel's father Shri Ashok Sapra was not well and a junior counsel appeared and as no hearing took place on the said date on account of Respondent's Counsel's non availability she did not note the date being new in profession. 6. That due to father's ailment, undersigned Counsel lost track of the matter and same went unattended. Later Counsel's father Advocate Ashok Sapra left his heavenly abode in January 2017 after prolonged illness and thereafter counsel's mother unable to bear the loss, became seriously ill and was hospitalized on several occasions. The hospitalization records I shall produce at the time of arguments for kind perusal of the Hon'ble Appellate Tribunal. 7. That recently, while reorganizing the office, Counsel perused the file and finding no status enquired from this Hon'ble Appellate Tribunal's Registry and come to know that consequent to default in appearance, the Hon'ble Appellate Authority vide Order dated 19.08.2015 dismissed the appeal for non appearance." 11. It is submitted in the aforesaid Paras of the application that on dated 19.03.2015 a junior counsel appeared and as no hearing took place on the said date on account of respondent's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/stage of the appeal. The appellant is a company and could have employed at least one person to follow the appeal. No reason has been cited by the applicant as to why the appellant did not follow the appeal or to know the status of the appeal for a period of 1350 days. 16. It is contended by the applicant that on 19.08.2015 the learned counsel for the respondent was not present. The said ground does not absolve the applicant from not attending the appeal on 19.08.2015 and on two prior occasions. It may be mentioned here that Shri Vikas Pathak, advocate was appearing for respondent on various dates including dated 15.03.2013 when Shri Vikas Pathak accepted the notice of the appeal on behalf of the respondent. Even on dated 21.08.2014 when the arguments were concluded by the learned counsel for the appellant the same advocate Mr. Vikas Pathak appeared and remain present for the respondent. 17. It is one of the grounds of the applicant that the application should be allowed since certain other appeals which arise out of the same impugned order are pending. During the course of arguments the learned counsel for the respondent submitted that there were 25(Twenty- Five) appeals filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. 11. In Improvement Trust, Ludhiana v. Ujagar Singh and others[14], it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years." 21. I have examined the application for restoration of appeal, reply and rejoinder thereto and heard the oral submissions made by both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personally present for the appellant on different dates. So, the ground of the appellant that she could not appear on the date 19.08.2015 and could not track the appeal is not accepted. (xiii) There is nothing on record that the appellant had made any effort to know the status of the appeal by employing a person of the company. (xiv) The respondent has acquired the benefit and valuable rights due to dismissal of the appeal almost four years back and therefore, prejudice would be caused if the appeal is restored to file. 22. The Hon'ble Supreme Court in case of "Lanka Venkateswarlu (D) By Lrs Vs. State of A.P. & Ors. reported in 2011 SCCL.COM 154" has observed in so many words as under: "The concepts such as "liberal approach", justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Whilst considering applications for condonation of delay under section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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