Syncom Formulations v. Sas Pharamecuticals

G.S. SISTANI, J. July 21, 2010 'msr'

21. * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment 21 July, 2010 + RFA 190/2009 SYNCOM FORMULATIONS ..... Appellant Through : Mr. Sachin Gupta and Mr. Shashi P. Ojha, Advs. versus SAS PHARAMECUTICALS ..... Respondent Through : Mr. Rajeev Kumar, Adv. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes CM NO.81496/2009. 1. This is an application filed by the appellant under Section 5 of the Limitation Act seeking condonation of delay of 806 days in filing the present appeal. 2. Learned counsel for the appellant submits that the judgment and decree was passed on 24.11.2006, however, the decree was drawn up only on 25.5.2007. Counsel further submits that delay in filing the appeal was caused on account of the fact that after passing of the judgment and decree the appellant sought advice from various counsels in Indore and Delhi about the merit and the grounds of the appeal. The appellant thereafter approached the present counsel for preparing appeal in the month of March, 2007. 3. It is further contended by counsel for the appellant that the case of the appellant was being handled by the present law firm, which has senior associate lawyers, who interact and receive instructions independently from the clients and one such counsel was interacting with the present appellant. The said counsel had prepared the first draft of the appeal in the month of April, 2004, which was sent to the appellant for their approval. The associate lawyer, who was handling the matter, in his email dated 31.7.2007 had written to the appellant that the appeal is being filed and, thus, the appellant was under the impression that appeal had been filed, admitted and the same would come up for hearing in its normal course. 4. Learned counsel for the appellant submits that the counsel who had drafted the appeal left the services of the law firm, without giving status report and without handing over the matters, which were being handled by him and, thus, the filing of appeal escaped the attention and was not filed within the period of limitation. Counsel further submits that in April, 2009, when the appellant received execution papers, the appellant contacted the law firm to find out the present status of the appeal and it was learnt that the appeal had never been filed. Counsel also submits that non-filing of the appeal within the period of limitation was on account of inadvertence and it was neither intentional nor deliberate and in case delay is not condoned, it would result in a meritorious matter being thrown out at the very threshold and cause of justice would be defeated. 5. Learned counsel for the appellant relies upon Ram Nath Sao vs. Gobardhan Sao, reported at (2002) 3 SCC 195, in support of the aforesaid plea which has been raised. Counsel for the appellant submits that in the case of Ram Nath Sao (supra), the Apex Court while considering various judgments of the Supreme Court had condoned the delay in a partition suit, which has been decreed by the trial court and thereafter four appellants had died during the pendency of the first appeal before the High Court. The court had taken into consideration that the appellants were rustic villagers and illiterate. 6. Learned counsel for the appellant submits that a liberal view should be taken in this matter and delay should be condoned. 7. The present application has been vehemently opposed by counsel for the respondent on the ground that the present application is extremely casual in nature, devoid of material particulars and the appellant has suppressed the fact that the appellant company had knowledge of the judgment as an application under Order 39 Rule 2(A) CPC was filed during the course of the suit and the same was pending even after passing of the judgment. Counsel further submits that show cause notices were issued to