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Judgment
The present miscellaneous application has been filed seeking the restoration of the first appeal bearing no. 670 of 2020 which was dismissed in default vide Order dated 14.06.2023.
Submission of learned counsel is that the merits of the case have not been gone into and the appeal was dismissed as none could appear on behalf of the appellant on the date fixed and, therefore, the appeal be restored to be heard on merits. It has also been submitted that substantial compliance of the impugned Order has already been made and principal amount along with 9% interest has already been paid back to the respondent. However, the appellant wants to contest the 12% rate of interest and, therefore, they have to be heard on merits.
Learned Counsel appearing for the respondent opposes the submission made by learned counsel for appellant / applicant. Submission is that the appeal was dismissed vide Order dated 14.06.2023 while the present miscellaneous application seeking restoration has been filed on 12.09.2023 which is far beyond the period of limitation prescribed for such applications. It has also been submitted that there is no delay condonation application moved to seek condonation of delay in filing the restoration application so belatedly and there is no other explanation furnished in the miscellaneous application which may go to justify the delayed filing. It has also been submitted that the restoration application also does not contain any kind of explanation given to explain the non-appearance of the appellant or his legal representative and, therefore, the application deserves to be rejected.
Perused the record in the light of the submissions made at bar.
This is true that the restoration application has been filed beyond prescribed period for moving such applications. This is also true that the restoration application has not been accompanied with any kind of delay condonation application. This is also true that the restoration application itself does not contain any kind of explanation which may go to explain the delayed filing of this application. With such facts the miscellaneous application can be dismissed on that ground alone but in order to satisfy itself that there may not be any miscarriage of conscionable justice the Bench has proceeded to condone the delay and decide the application on its merits.
The perusal of the order sheet shows that the applicant / appellant has been a perpetual defaulter and has chosen not to appear before this Commission consecutively of several dates. The Order dated 22.02.2022 may be quoted hereinbelow:-
For the Appellant : NEMO
For the Respondent : Mr. Vipin Chaudhary, Advocate
Mr. Sandeep Bhardwaj, Advocate
Dated : 22.02.2022
ORDER
Mr. Vipin Chaudhary, learned Counsel for the Respondent is present. However, nobody is appearing on behalf of the Appellant.
In the interest of justice, I defer the matter.
List on 11.04.2022.
Again on 11.04.2022 none appeared for the appellant. The Order dated 11.04.2022 is being quoted hereinbelow:-
For the Appellant : NEMO
For the Respondent : NEMO
Dated : 11 Apr 2022
ORDER
When the case was taken up, nobody appeared for either of the parties.
In the interest of justice I defer the matter.
List on 22.07.2022.
Again on 07.10.2022 none appeared for appellant. The Order dated 07.10.2022 is being quoted hereinbelow:
For the Appellant : Nemo
For the Respondent : Nemo
Dated : 07.10.2022
ORDER
When the case is taken up, nobody appears for either of the Parties. In the interest of justice, I defer the matter.
List again on 21.12.2022.
Similarly, when the case was taken up on 21.12.2022 none appeared for the appellant. The Order dated 21.12.2022 is being quoted hereinbelow:
For the Appellant : NEMO
For the Respondent : NEMO
Dated : 21 Dec 2022
ORDER
When the case was taken up, nobody was present for either of the Parties.
In the interest of justice, I defer the matter.
List the matter on 24.02.2023.
Then on 24.02.2023 situation remained the same. Order dated 24.02.2023 may be quoted hereinbelow:-
For the Appellant : NEMO
For the Respondent : NEMO
Dated : 24.02.2023
ORDER
When the Case was taken up, nobody appears for either of the Parties. In the interest of justice, I defer the Matter.
List again on 14.06.2023.
Similarly, Order dated 14.06.2023 shows that none had appeared for the appellant to pursue its matter and the impugned Order was passed which reads as follows:-
FOR THE APPELLANT : NONE
FOR THE RESPONDENT : NONE
Dated : 14 June 2023
ORDER
None is appearing on behalf of the Appellant since long on various dates. It shows that the Appellant is not interested in pursuing the present Appeal.
The Appeal is dismissed in default.
The perusal of the afore-said order sheets shows that it was not a case of a particular default on a single date as a matter of exception. To the contrary, matter was not being pursued in right earnest with due diligence since long. When the present miscellaneous application seeking the restoration of appeal is perused, it is found that the same is conspicuously silent about any kind of explanation which may go to justify the consecutive non-appearance of the appellant or its legal representative on the dates fixed in the matter for such long. The only submission made by learned counsel appearing for appellant is that on the relevant dates when the default had been committed a different counsel was there representing the appellant. The present counsels were engaged later on and in such a situation it is not possible to offer any explanation about the default of the erstwhile counsel who was representing on the relevant dates of default.
In the afore-said circumstances, the bench does not see any good reason to restore the appeal. The miscellaneous application lacks merits and is hence being dismissed as such.
The Registry is requested to send a copy each of this Order to all parties in this misc. application and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.