1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1345 OF 2009 IN APPEAL LODG.NO. 237 OF 2009 IN SUMMONS FOR JUDGMENT NO.727 OF 2003 IN SUMMARY SUIT NO. 1544 OF 2003 Mahendra M.Shah (H.U.F.) ..Appellant Vs. Monotona Exports Ltd. & Anr. ..Respondents .... Mr.Madhav Jamdar for Appellant Mr.Naushad Engineer i/b RMG Law Associates for Respondents .... CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 19th JANUARY, 2010 P.C.: 1. Heard Mr.Jamdar, the learned counsel for the appellant who filed Summary Suit No. 1544 of 2003. On 13/20th June, 2005 the learned trial Judge granted unconditional leave to defend to Defendant No.1 and hence, the Plaintiff has filed the Appeal Lodging No. 237 of 2009 2 against the said order but belatedly. This Notice of Motion has been taken out for condonation of delay of 3 years and 6 months. Affidavit in support of the Motion states that Shri.Mahendra Shah was unwell and was under medical treatment right from June, 2003 and during this period of his ailments, the business deteriorated and his financial condition had weakened. In additional affidavit presented today, it has been further stated that the affiant ’s son Rishabh was born on 13 th September, 1991 and when the impugned order was passed on 28th June, 2005 he was about 14 years of age and could not have taken any steps to approach the Advocate and instruct him to file an appeal. It has been further stated that the affiant comes from a conservative Marwadi community and his wife and daughters are doing only household work and are not taking the care of health or doing anything relating to the business. As per Mr. Jamdar, these grounds supported by the medical certificates placed on record make out good and sufficient grounds to condone the delay of 3 years and 6 months. 2. Mr. Engineer, the learned counsel appearing for the Defendants has opposed this Motion by advancing arguments. As per him, the medical certificate dated 1st June, 2005 indicates that the affiant was suffering from neck pain and headache since last two years as per certificate dated 1st June, 2005. The next medical certificate is dated 3 19th June, 2006 which also indicates that he was suffering from neck pain and tension headache. Referring to these medical certificates (about 10 of them) it was pointed out by Mr. Engineer that the affiant was never hospitalized and some of the medical certificates issued in the year 2008 went to show that he was normal. 3. Mr.Jamdar in support of his contentions that good and sufficient reasons have been made out to condone the delay, has relied upon the decision in the case of M.K.Prasad Vs. A.Arumugam [(2001) 6 S.C.C. 176] and Mr.Engineer on the other hand, relied upon the decision in the case of Shah Babulal Khimji Vs. Jayaben D.Kania and another [AIR 1981 S.C. 1786. 4. We have perused the medical certificates and these certificates issued in the years 2005, 2006 and 2007 indicate that the affiant was suffering from neck pain and headache or tension headache. He was never hospitalized. The impugned order has been passed on 28th June, 2005. We are not satisfied that the ailment of the appellant was such as to prevent him in normal course to take steps to file an appeal against the order passed by the learned trial Judge. It is well settled that it is for the appellant to explain the delay caused and make out good and sufficient reasons and the delay on day to day basis must be explained. In our considered opinion, the delay of 3 years and 6 4 months is an inordinate delay and it has not been explained at least on the basis of the reasons set out in the affidavit i.e. ill health. 5. Even otherwise, we have noted that the appellant is not out of the Court and by the impugned order, his suit has been transferred to the commercial causes list which would be decided on its own merits. 6. In the facts and circumstances of this case, we do not find it necessary to show our indulgence to condone the inordinate delay of 3 years and 6 months and hence, this Motion must fail. 7. The same is hereby rejected. 8. Appeal Lodging No.237 of 2009 does not survive and is disposed off accordingly. [ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]