- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4483 OF 2007 NOTICE OF MOTION NO.4483 OF 2007 NOTICE OF MOTION NO.4483 OF 2007 IN IN IN APPEAL (L) NO.869 OF 2007 APPEAL (L) NO.869 OF 2007 APPEAL (L) NO.869 OF 2007 IN IN IN CHAMBER SUMMONS NO.1489 OF 2003 CHAMBER SUMMONS NO.1489 OF 2003 CHAMBER SUMMONS NO.1489 OF 2003 IN IN IN EXECUTION APPLICATION NO.373 OF 2003 EXECUTION APPLICATION NO.373 OF 2003 EXECUTION APPLICATION NO.373 OF 2003 IN IN IN ARBITRATION CASE NO.L/160/2001-2002 ARBITRATION CASE NO.L/160/2001-2002 ARBITRATION CASE NO.L/160/2001-2002 Manmohan Exims Private Limited. .. Appellant Vs. M/s.Sarju International & Anr. .. Respondents -- WITH WITH WITH NOTICE OF MOTION NO.4432 OF 2007 NOTICE OF MOTION NO.4432 OF 2007 NOTICE OF MOTION NO.4432 OF 2007 IN IN IN APPEAL (L) NO.870 OF 2007 APPEAL (L) NO.870 OF 2007 APPEAL (L) NO.870 OF 2007 IN IN IN CHAMBER SUMMONS NO.1030 OF 2003 CHAMBER SUMMONS NO.1030 OF 2003 CHAMBER SUMMONS NO.1030 OF 2003 IN IN IN EXECUTION APPLICATION NO.373 OF 2003 EXECUTION APPLICATION NO.373 OF 2003 EXECUTION APPLICATION NO.373 OF 2003 IN IN IN ARBITRATION CASE NO.L/160/2001-2002 ARBITRATION CASE NO.L/160/2001-2002 ARBITRATION CASE NO.L/160/2001-2002 Manmohan Exims Private Limited. .. Appellant Vs. M/s.Sarju International. .. Respondent -- WITH WITH WITH NOTICE OF MOTION NO.4842 OF 2007 NOTICE OF MOTION NO.4842 OF 2007 NOTICE OF MOTION NO.4842 OF 2007 IN IN IN APPEAL (L) NO.947 OF 2007 APPEAL (L) NO.947 OF 2007 APPEAL (L) NO.947 OF 2007 IN IN IN CHAMBER SUMMONS NO.1490 OF 2003 CHAMBER SUMMONS NO.1490 OF 2003 CHAMBER SUMMONS NO.1490 OF 2003 IN IN IN EXECUTION APPLICATION NO.374 OF 2003 EXECUTION APPLICATION NO.374 OF 2003 EXECUTION APPLICATION NO.374 OF 2003 IN IN IN - 2 - ARBITRATION CASE NO.L/161/2001-2002 ARBITRATION CASE NO.L/161/2001-2002 ARBITRATION CASE NO.L/161/2001-2002 Manmohan Textile Limited. .. Appellant Vs. M/s.Sarju International & Anr. .. Respondents -- WITH WITH WITH NOTICE OF MOTION NO.4843 OF 2007 NOTICE OF MOTION NO.4843 OF 2007 NOTICE OF MOTION NO.4843 OF 2007 IN IN IN APPEAL (L) NO.949 OF 2007 APPEAL (L) NO.949 OF 2007 APPEAL (L) NO.949 OF 2007 IN IN IN CHAMBER SUMMONS NO.1032 OF 2004 CHAMBER SUMMONS NO.1032 OF 2004 CHAMBER SUMMONS NO.1032 OF 2004 IN IN IN EXECUTION APPLICATION NO.374 OF 2003 EXECUTION APPLICATION NO.374 OF 2003 EXECUTION APPLICATION NO.374 OF 2003 IN IN IN ARBITRATION CASE NO.L/161/2001-2002 ARBITRATION CASE NO.L/161/2001-2002 ARBITRATION CASE NO.L/161/2001-2002 Manmohan Textiles Limited. .. Appellant Vs. M/s.Sarju International. .. Respondent -- S/Shri D.D.Madon along with Ranjit Shetty & Shailesh Foria i/b Hariani & Co. for the Appellant. None for the Respondents. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 2ND JULY, 2008 P.C. 1. Since the common question of law and facts arise in the above notices of motion, they were heard together and are being disposed of by this common - 3 - order. 2. In the Notices of Motion No.4483 of 2007 and 4432 of 2007, there is 780 days delay in filing each of the appeals, whereas in the Notices of Motion No.4842 of 2007 and 4843 of 2007, there is 911 days delay in filing each of the appeals. The ground alleged for condonation of such a long delay is that there was change in the business of the appellants from fabric business to carpets exporting business, and on that count, the appellants could not concentrate on other things including the present litigation. There was also miscommunication between the appellants and the earlier advocates in relation to the advise to file appeals and ultimately the Appeal (L) Nos.869 of 2007 and 870 of 2007 came to be filed on 16th November, 2007 and the Appeal (L) Nos.947 of 2007 and 949 of 2007 came to be filed on 15th December, 2007 in relation to the judgment delivered on 9th September, 2005, certified copy of which was obtained on 20th October, 2005. 3. The relevant portion of the affidavit in support of the notices of motion reads thus:- "4. I say that around the time the - 4 - impugned order is passed, the Appellant Company incurred huge loss in the fabric business due to outstanding with various customers as well as writing off the bad debts. I say that due to this loss some of the Company’s Directors resigned from the company. I say that to survive in the competitive business the remaining Directors had to try hard and subsequently changed the line of business. I say that they started business of exporting carpets and were solely concentrating on the world market for their survival. 5. I say that the Company took more time than it expected to develop this new line of business for setting up this new line of business and developing new markets. 6. I say that due to this expansion the present directors could not concentrate on other things including the present litigation. - 5 - 7. I say that due to this the Appellants could not take a decision to prefer an Appeal against the impugned order dated September 9, 2005 and hence there was delay in filing the present appeal. 8. I say that even otherwise after the impugned order was passed there was some miscommunication between the Appellants’ erstwhile Advocates and the Appellants, because of which, the advise to file an appeal from the impugned order remained to be conveyed to the Appellants. 9. I say that even after appointing the present Advocates, the concerned person of Appellant who was familiar with the facts of the case was constantly travelling with regard to the new established carpet business. I say that this fact is corroborated by the fact that inspection in the proceedings filed by Respondent before - 6 - the Learned Commissioner for Taking Accounts was being adjourned from time to time (till it finally happened on 12th October, 2007) since the concerned person of Appellant has been travelling. I submit that the present Advocates could not be briefed immediately after being appointed because of the same. 10. I say that after having perused the present bulky proceedings and after having understood the chequered history, the present appeal is filed." 4. Considering the ground disclosed in the affidavit in support of the notices of motion, the same cannot be said to disclose any cause for such a long delay in filing the appeals. Though the appellants are not expected to explain day to day delay in filing the appeals, however, they have to disclose a cause for delay which can be said to be a sufficient cause within the meaning of the said expression under Section 5 of the Limitation Act, 1963. Mere failure on the part of the appellants to apply their mind to the litigation and realising of - 7 - need for filing appeals after such a long time, cannot be said to be a sufficient ground for condonation of delay. As regards the contention about miscommunication between the appellants and the earlier advocates in relation to the advise to file appeals, the affidavits nowhere disclose as to when such miscommunication occurred nor there is any factual data in that regard. Even as regards the contention about change of business being a ground for condonation of delay, the same is not supported by any documentary evidence. Mere claim of the appellants cannot be considered as a gospel truth. In the circumstances, in the absence of sufficient cause being shown for such a long delay in filing the appeals, the delay cannot be condoned and therefore, the notices of motion are dismissed. 5. Consequently, the Appeals Lodging Nos.869 of 2007, 870 of 2007, 947 of 2007 and 949 of 2007 also stand disposed of as dismissed. ( R.M.S.KHANDEPARKAR, J ) ( P.B.MAJMUDAR, J )