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TMI Blog2024 (12) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... anner. The question of condoning any delay in refiling would have to be seen in the context of the explanation offered to find out whether the reasons cited were beyond the control of the Applicant and all efforts were made to overcome the delay with due diligence and utmost despatch. There is no hard and fast rule to measure due diligence and due despatch. However, due diligence and despatch can always be assessed from how a prudent person would act or can be expected to act in a timely manner in similar circumstances - It becomes clear that the Applicant was actively litigating before other judicial forum while being clearly negligent in following-up the present matter before the Tribunal. This is indicative of negligence and inaction on the part of the Applicant. No sufficient cause has been made out which would warrant overlooking the delay caused in curing the defects on the grounds of ill-health of the clerk. There are some other grounds cited to explain the delay in rectifying the defects. One such ground was that as several duplicate emails/SMSs were received from the NCLAT Registry, this had hampered them in effectively attending to the defects in a timely manner. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hybrid Mode) 27.08.2024: I.A. No. 5382, 5524 of 2024 Issue notice on delay condonation of application as well as the condonation of delay in refiling the appeal. Reply be filed within two weeks, Rejoinder, if any, may file within two weeks, thereafter. List on 25.09.2024. 3. Separate I.A. Nos. 5613 of 2024 (delay of 127 days) in CA (AT) (Ins) No. 1567 of 2024, IA- 6061 of 2024 (delay of 134 days) in CA (AT) (Ins) No. 1684 of 2024 (delay of 134 days), IA- 6057 of 2024 (delay of 134 days) in CA (AT) (Ins) No. 1686 of 2024 and IA No. 6051 of 2024 (delay of 134 days) in CA (AT) (Ins) No. 1688 of 2024 have also been filed seeking condonation of refiling delay. 4. For the present, we propose to deal with the Refiling Delay Condonation Application No. 5382 of 2024 wherein the Applicant has given the following explanation at Paragraph 2.2 of the application justifying the refiling delay which is as reproduced below: The delay of 121 days in filing appeal may kindly be condoned as the same is neither intentional or deliberate which have occurred on account of logistical difficulties faced due to the unforeseen health conditions encountered by the clerk. The appellant has therefore filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicate emails and SMSs were received from the Registry for the same defects which had added to confusion and complications in tracking the defects and curing them. To cap it all, the clerk of the filing counsel was not keeping good health which substantially delayed the curing of the defects. Moreover, since this was the first case which was filed by the counsel through the medium of e-filing portal and the counsel not being familiar with the filing process on the e-portal, he had failed to keep proper record of the defects and its removal. Another reason that was pleaded for causing delay was that there was the intervening period of summer vacations from 03.06.2024 to 30.06.2024. It was also vehemently contended that most of the defects were cured in the months of April and May 2024 and hence the contention of the Respondent that the Applicant was stirred into action only after a notice of contempt had been issued on them on 13.06.2024 lacks foundation. 7. We have heard the rival contentions of both the parties and perused the records carefully. 8. At the outset, we would like to point out that it is well recognised that while dealing with refiling delay condonation applications, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illness which puts a question mark on the plausibility of this excuse. Even if we accept that the clerk was suffering from some ailment, this impediment was not that formidable that it could not have been overcome. The Applicant could have always substituted this clerk with some other team-member. This scapegoat also appears to be a humbug since ample evidence has been placed by the Respondent to show that the counsel of the Applicant was pursuing various litigations before other forums of law during the same period of time when the clerk was purportedly ailing. The Ld. Counsel for the Respondent in their additional affidavit at pages 19 to 41 has placed on record that the counsel for the Applicant had been filing cases before the Hon ble Supreme Court of India during the same time period. This has not been controverted by the Applicant. That being the case when the counsel for the Applicant was at ease in contemporaneously filing litigations in other courts, if he was sufficiently diligent, he could have displayed similar level of alacrity in dealing with defects in the present set of appeals filed before this Tribunal to render them defect-free. It becomes clear that the Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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