- (1.) This special appeal by Shri V.N. Khanna is directed against the judgment of a learned Single Judge of this Court dated 10.9.1972, where by he dismissed the appeal as barred by time.
(2.) In order to appreciate the controversy raised in this appeal it is necessary to state the relevant facts. The Official Liquidator Golecha Properties (Private) Ltd., (hereinafter referred as the 'Official Liquidator'), invited claims from the creditors of company. In response to the notice the appellant sent his claim on the basis of a Hundi alleged to have been executed by the company in his favour. The original Hundi verified by an Oath Commissioner was sent by the appellant under a registered cover which was received in office of the Official Liquidator on 21.4.1969. The Official Liquidator required the original Hundi for the scrutiny of the claim. He, therefore, by his letter dated 20.2.1971 called upon the appellant to submit the original Hundi which the appellant tried to send to the company by dispatching a letter referring that the original Hundi was enclosed with it. It, however, appears that the original Hundi was not with the letter and the appellant seeks to explain that it was by inadvertence that the Hundi could not be enclosed with the letter although appellant was under a bona fide impression that the same had been enclosed by him The Official Liquidator, therefore, informed the appellant to submit the original Hundi at Delhi on 16.9.1971. According to the appellant he was not at his place of residence at Lucknow but was abroad on a Govt. mission, wherefrom he returned only in the month of October, 1971. The appellant states that on his return from abroad he dispatched the original Hundi by registered post on 21.10.1971 which was received in the office of the Official Liquidator on 25.10.1971. On this very date viz. 25.10.1971, the appellant received a intimation of the rejection of his claim on 13.10.1971. The appellant made written representation for reversing the order but the Official Liquidator refused to reconsider it on the ground that be had already rejected it. Being aggrieved the appellant preferred an appeal which was rejected as barred by time, by the learned Single Judge as in his opinion the appellant had not satisfactorily explained the delay of 106 days by which the appeal was barred by time.
(3.) It is not in dispute that the appeal before the learned Single Judge was presented beyond time. The appellant, however, sought to explain the delay by moving an application for condonation of the delay under Rule 7 of the Company Court Rules read with Section 5 of the Limitation Act setting out reasons in detail as to how he was delayed in presenting the appeal, Principal reasons assigned by appellant were sickness of his wife from mental disease; (ii) his involvement in preparation for the departmental examination and interview; (iii) he came down to Jodhpur on 23-1-1972, consulted the lawyer of that place and had sent the papers relating to appeal to him at Jodhpur which were received by his counsel on 12-2-1971, but unfortunately the papers were eaten away by the rats. He had, therefore, to get the appeal and affidavit again prepared by his counsel who sent them for his signature, which tock further time and ultimately the appeal could be presented on 1-3-1971. In support of his contention, appellant submitted certificate of illness of his wife and also examined himself in evidence. The learned Judge while pointing out minor defects in the evidence regarding the sickness of the appellant's wife was inclined to assume that the appellant's wife really suffered from mental illness from 15-7-1971 to 15-1-72 We also do not see any sufficient reason to disbelieve this version of appellants The learned Judge was, however, not satisfied with the explanation as to subsequent delay as he was of the opinion that the delay subsequent to 15-1-1972 on the part of the appellant and has agent was not justified as the appellant and his agent did not show enough vigilance which reflected that the appellant was not serious about the presentation of the appeal. From the perusal of the judgment it appears that the learned Judge was under the impression that the Court was to be satisfied for each day's delay satisfactorily although the learned Judge himself expressed doubt as to the applicability of Section 5 of the Limitation Act. In this view of the matter be did not accept the appellant's explanation and held the appeal barred by time.;