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Judgment
S. Ravi Kumar, Chairperson
This Application is filed to condone delay in preferring the Appeal against Order dated 31.10.2020 in RA 05/2018 on the file of DRT-II, Bengaluru.
Director of Petitioner/Appellant Company, who is also 2nd Petitioner/Appellant, filed Affidavit in support of Petition, contending that, from the date of receiving impugned Order dated 31.10.2020, till date of filing of Appeal is examined, delay comes to 5 days, and there are no lapses on the part of Petitioners/Appellants in not preferring the Appeal in time. It is also stated that deponent is a patient of Blood Cancer and undergoing treatment at Apollo Hospital, and he was also affected by COVID-19 - 2nd wave, and admitted to Command Hospital, and in view of the judgement of Hon’ble Supreme Court in SLP (C) 10911/2021, delay has to be condoned.
Bank filed Counter disputing the Affidavit averments, contending that, the Appeal has to be filed within one month from the date of Order but, Petitioners/Appellants failed to do so; instead, they filed Writ Petition and Petitioners/Appellants could not file the Appeal within 30 days from the date of disposal of Writ Petition, and delay mentioned is false and frivolous, and Application is liable to be dismissed.
Petitioners/Appellants filed better Affidavit on 01.06.2023 explaining each day’s delay from the date of Order till date of filing, but, Bank did not choose to file any Counter to said Affidavit.
According to better Affidavit, there is no delay in filing the Appeal, if 30 days are calculated from the date of obtaining copy.
Heard both sides.
Both Advocate for Petitioners/Appellants and Respondent reiterated the contentions and rival contentions of their respective clients.
Advocate for Petitioners/Appellants submitted that both himself and deponent, suffered with COVID-19, and necessary medical records are produced along with better Affidavit. He submitted, as delay is satisfactorily explained through better Affidavit dated 01.06.2023, which averments remained unchallenged, delay, if any, has to be condoned.
On the other hand, Advocate for Bank submitted that Petitioners/Appellants are in the habit of filing Writs though statutory remedy is to approach Appellate Tribunal, and intentionally approached Hon’ble High Court, therefore, that period cannot be excluded.
I have perused material papers.
Respondent herein filed OA 369/2002 for recovery of money and the same was allowed by DRT, on 14.05.2009. Petitioners/Appellants filed Review Application No.05/2018, and Tribunal below dismissed said Review Application, challenging which, present Appeal is preferred. As this Application is only to condone delay, it is not proper to go into the merits and demerits of the case, and only aspect that has to be examined is whether delay is satisfactorily explained or not. As rightly pointed out by Learned Advocate for Petitioners/Appellants, when Petitioners/Appellants filed better Affidavit dated 01.06.2023 giving explanation for delay, same is not challenged by Bank. Therefore, I am of the view that better Affidavit dated 01.06.2023, has to be accepted.
In view of same, Application IA 272/2022 is allowed. Delay in filing the Appeal is condoned. Both parties shall bear their own costs.