1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 6080 OF 2008 IN FIRST APPEAL NO. 192 OF 2000 (Bharat Petroleum Corporation Limited and another .v. Arvind Shriniwas Bobde and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri D.V. Chauhan, Advocate holding for Shri S.P. Dharmadhikari, Senior Advocate for the applicants. Shri Sunil Manohar, Advocate for the respondent No.1. CORAM : D.K. DESHMUKH AND PRASANNA B. VARALE, JJ. 12TH DECEMBER, 2008 Heard. This is an application taken out by the appellants for condonation of delay in bringing the Legal Representatives of deceased respondent No.1 on record. Following are the admitted facts. (i) That, the respondent No.1 expired at Nagpur on 23.11.2005. (ii) That, on 12.12.2005, the Counsel for the respondent No.1 filed a pursis in this Court to the effect that the respondent No.1 has expired on 23.11.2005. Copy of the pursis was delivered to the Advocate appearing on behalf of the appellants. 2 (iii) That, on 23.12.2005, a notice was given on behalf of the sole legal representative of respondent No.1 to the appellants informing them about the death of the respondent No.1 and asking them to make payment of monthly rent as per the Court's order to the legal representative. (iv) On 12.01.2006, a cheque in the amount of Rs.25,000/- (rupees twenty-five thousand only) dated 11.01. 2006 drawn in the name of the deceased- respondent No.1 was sent to the Advocate for the respondent No.1. (v) By letter dated 13.02.2006, the Advocate for the respondent No.1 and the legal representative informed the appellants that the cheque has been wrongly issued in the name of the deceased-respondent No.1. It should be issued in the name of the legal representative, and acting on that, along with the letter dated 02.03.2006, a cheque in the amount of Rs.25,000/- (rupees twenty-five thousand only) dated 02.03.2006 was issued by the appellants in favour of the sole legal representative of deceased-respondent No.1. (vi) That, on behalf of the appellants, an acknowledgment, dated 19.01.2006 has been signed that the appellants have received xerox copy of the registered will executed by the respondent No.1. 3 (vii) That, subsequently the appellants have been paying rent to the legal representative of the respondent No.1. (viii) That, the pursis filed on behalf of the deceased -respondent No.1 by his Advocate came up before the Court on 17.03.2006 and the Court passed the following order. “If the legal representatives are not brought on record within 90 days, office to take note of abatement of appeal as against respondent No.1.” The order sheet of the Court shows that on that date, the appellants were represented by an Advocate. (ix) That the fact that the order was passed by the Court because of the pursis on 17.03.2006 is not disclosed in the application for condonation of delay. Even according to the appellants there is a delay of 895 days in making the application for bringing legal representatives on record and for setting aside the abatement. In the application filed for condonation of delay, it is admitted that the intimation about the death of respondent No.1 was duly received on 12.12.2005. It is claimed that one Mr. Mahendru who was working in the Nagpur office did not take any action on the basis of that intimation. That, Mr. Mahendru was 4 transferred in the month of April, 2006. But, he did not inform about the death of the respondent No.1 to his successor. But, though it is an admitted position that Mr. Mahendru was continuing in the employment of respondent, no affidavit of Mr. Mahendru has been filed. Thus, whatever statements have been made in relation to the alleged inaction on the part of Mr. Mahendru obviously cannot be accepted. They cannot be even looked into. The learned Counsel appearing on behalf of the appellants relied on the judgment of the Supreme Court in the case of Special Tehsildar, Land Acquisition, Kerala .v. K.V. Ayisumma (reported in AIR 1996 SC 2750) and contended that because the appellants are Government of India Undertaking and the delay has occured for administrative reasons, the delay should be condoned. The learned Counsel appearing on behalf of the respondent No.1, on the other hand, relying on the judgment of the Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village .v. Bhargavi Amma (Dead) by LRs and others (reported in 2008(11) Scale 96) submits that the delay cannot be condoned. He has taken us thorough the judgment. He further 5 submits that the order passed by the Court when the pursis came before the Court was relevant insofar as condonation of delay is concerned and the appellants who were aware of that order have deliberately suppressed that fact from the Court and, therefore, the delay cannot be condoned. He relied on the observations of the Supreme Court made in the case of Pundlik Jalam Patil (D) by LRs. .v. Exe. Eng. Jalgaon Medium Project and another (reported in 2008(13) Scale, 773). In our opinion, even without referring to the judgments of the Supreme Court which are relied upon by both the sides, we can safely say that it is a settled law insofar as Section 5 of the Limitation Act is concerned that if delay is explained and if the Court finds that the explanation is satisfactory then delay can be condoned. Obviously, therefore, when there is no explanation given for the delay, the delay cannot be condoned. If we peruse the application filed for condonation of delay from this point of view, we find that the only explanation that has been given is that Mr. Mahendru who was at that time incharge of Nagpur office, did not take any action till he was transferred in April, 2006 and that he did not intimate the fact of the death of respondent No.1 to his successor. In the absence of any affidavit filed by 6 Mr. Mahendru about his alleged inaction and in the absence of any affidavit filed by his successor, in our opinion, nothing said in this regard can be taken as an explanation. What is surprising is that an allegation is made that Mr. Mahendru did not inform about the fact of the death of respondent No.1 to his successor. Even the name of his successor is not disclosed. In our opinion, therefore, there is no explanation whatever given in the application for the delay involved. What is pertinent to be noted is that though it is alleged that Mr. Mahendru did not inform his successor about the death of the respondent No.1, it is obvious from the letter dated 02.03.2006 along with which cheque dated 11.01.2006 was sent to the Advocate for the respondent No.1 and his legal representative, that the cheque was in the name of the legal representative and that letter is signed by the Nagpur office of the appellants. This letter shows that even assuming the allegations to be correct that Mr. Mahendru did not intimate the fact of the death of the respondent No.1 to his successor, his successor became aware of the fact because of the letter dated 13.02.2006 addressed to the appellants by the Advocate of the deceased-respondent No.1 and his legal representative for correcting the name on the cheque and the local office of the appellants has actually acted 7 on that letter and corrected the cheque. In our opinion, therefore, firstly there is no explanation given and even assuming that there is an explanation given, the explanation is obviously false. It is further to be noted that in any case the Court by its order dated 17.03.2006 given the appellants 90 days' time to file application for condonation of delay, as per order sheet of the case the appellants' lawyer was present before the Court on that day. Not only that, no explanation is given why application was not filed within 90 days of the order dated 17.03.2006, that order has been completely suppressed. No attempt is made to explain for non disclosure of the order even after reply was filed by the legal representative of the deceased-respondent No.1. The Supreme Court has repeatedly said that when explanation is given for the delay and the Court finds that the explanation is untrue or false then the Court cannot condone the delay. Taking overall view of the matter, therefore, in our opinion, in view of the settled law, inordinate delay that is involved in making application for condonation of delay in bringing legal representatives of the deceased on record and for setting aside the abatement cannot be condoned because the appellants have failed to explain the delay properly. The Civil Application is, therefore, 8 rejected. In view of the rejection of this application, the other civil applications do not survive. The same are disposed of accordingly. JUDGE JUDGE *rrg.