Arun Kumar Bhattacharya, J. - (1.) The hearing arises from an application under section 5 of the Limitation Act filed by the defendant/appellant praying for condonation of delay for 250 days in preferring the appeal against the judgment and decree dated 23.07.2004 passed by the Id. XIIth Bench, City Civil Court at Calcutta in T.S.1997/95 declaring the plaintiff/respondent as bona fide purchaser of the shares as described in Schedule 'A' to the plaint and restraining the present petitioner from transferring, assigning and/or registering the shares to any other person.
(2.) The petitioner's contention as per above application is that despite its instruction to the Id. erstwhile Advocate to oppose the matter, he did not intimate anything regarding development of the case, and when the petitioner's officer met him he could not apprise him the order passed by the Court as the brief was misplaced. The matter was then withdrawn from him and was given to Mr. M.K.Seal, Advocate of M/s.Sandersons & Morgans for taking necessary steps. Mr. Seal sought for instructions from the petitioner on informing the gist of the order of the Court. On instruction from the petitioner Mr. Seal applied for certified copy of the order on 15.02.2005 which was supplied to the petitioner on 01.03.2005. On being instructed by the petitioner, Mr. Seal drew up a draft of the Memorandum of Appeal and stay application and sent the same to the petitioner in May, 2005, and the appeal was ultimately filed on 29.04.2005. Such delay in preferring the appeal was due to misplacement of papers.
(3.) Mr. Mitra, Id. Counsel for the appellant/petitioner, advanced argument contending that the aforesaid delay of 250 days was solely due to the loss or misplacement of brief by the erstwhile Advocate, for which he could neither inform about gist of the order of the Id. Court below to the petitioner nor could take any step and as such the said ground for the delay being beyond the control of the petitioner, delay may be condoned. Mr. Tandon, Id. Counsel for the respondent, on the other hand, on referring to the various correspondence between the Advocate of his client and the petitioner and their Advocate contended that soon after passing of the decree on 23.07.2004, the matter was communicated directly to the petitioner by registered post as also by speed post requesting for necessary action at their end followed by three reminders in 2004 and two in 2005, the last being final reminder on 30.03.2005. Mr. Tandon further contended that on the request of Mr. Asish Kumar Guha, Id. Advocate of the petitioner vide his letter dated. 10.09.2004, a copy of the judgment was also supplied to him, and on the face of the said letters/ correspondence the petitioner's contention that they were in the dark about the order of the Court does not at all stand, and as such the appeal being hopelessly barred by limitation, condonation of such abnormal delay should not be allowed.;