*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.33/2005 AND NOTICE OF MOTION NO.615/2009 IN WRIT PETITION NO.3231/2004 M/s Yogey Diamonds. ..Petitioner -Versus- Union of India and others. ..Respondents ........... Mr.S.K.Mali, for the Petitioner. Mr.R.B.Pardeshi, for the Respondents. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 15th February, 2010. P.C. 1 Notice of Motion No.33/2005 is not on board. Mentioned. Taken on board. 2 Both these motions are preferred by the Petitioner for recalling the order dated 20.12.2004 passed in Writ Petition No. 3231/2004 which came to be dismissed in default. 3 A few facts of the present case are as under:- The Petitioner filed the aforesaid Writ Petition under Article 226 of the Constitution of India to challenge the order dated *2* 30.04.2004 passed by the Customs Excise & Service Tax Appellate Tribunal, West Regional Bench at Mumbai. 4 The aforesaid Writ Petition was on board for admission on 20.12.2004. On that date, no one appeared on behalf of the Petitioner with the result Writ Petition came to be dismissed for default. Thereafter, the Petitioner preferred Notice of Motion No. 33/2005 on 19.01.2005 seeking to restore the petition. In the affidavit in support of the said Notice of Motion, the Petitioner in paragraph No.2 stated as under:- “I say that I, the partner of the Petitioner, am appearing in this matter in person. I say that thus absence of any legal aid and my ignorance in the procedures followed in the matters before this Hon’ble Court, I failed to obtain the copy of the board of this Hon’ble Court for the 20th December, 2004 and thus, being unaware that the matter is listed before this Hon’ble Court, was unable to present myself for the hearing of the said Writ Petition. I say that, therefore, I am filing the present Notice of Motion.” 5 Though the above Notice of Motion No.33/2005 was pending, without taking any step to seek appropriate order on the said Notice of Motion, the Petitioner preferred another Notice of Motion No.615/2009 for the same relief on 25.11.2009. 6 In the above Notice of Motion No.615/2009, the Petitioner stated that there is delay in preferring the present Notice *3* of Motion for recalling the order dated 20.12.2004 because the Managing Partner of the Petitioner firm was not keeping good health and therefore, he did not make any inquiry in the office of this Court and was not aware of the fact whether or not the Writ Petition is pending. He claims to have made fresh enquiry in the first week of November, 2009 and that for the first time the Petitioner learnt about dismissal of the Writ Petition in the first week of November, 2009. Notice of Motion No.615/2009 is preferred by the Petitioner through constituted attorney. Paragraphs Nos.4, 5 and 6 of the affidavit in support of the Notice of Motion No.615/2009 read as under:- “4 I say and submit that after filing the above Petition the Managing Partner of the Petitioner’s firm was not keeping good health, therefore, he did not make any enquiry in the office of this Hon’ble Court and was not aware as to whether the said Petition is pending and/or disposed of till making a fresh enquiry in the first week of November, 2009 and was shocked to know that the above Petition was dismissed on the very first date of admission by the Division Bench of this Hon’ble Court without giving an opportunity to the Petitioner to represent himself in the above Petition when no reply was filed by any of the Respondents to oppose the Petition at the stage of admission or their Lordships could have adjourned the matter even in absence of the Petitioner directing the Respondents to file their reply and then could have disposed of the Petition on merit. 5 I say and submit that due to prolonged ill health of the Managing Partner of the Petitioner who could not keep a watch or vigil on the board *4* about listing of the matter for admission and/or dismissal of the said Petition. 6 I further say and submit that, due to the ill health of the Managing Partner of the Petitioner firm has instructed me to find out the status of the above Petition, therefore, on his instructions in the first week of November, 2009 I took personal search in the matter and came to know that the above Writ Petition was dismissed on 20.12.2004 in the absence of the Petitioner or its representative on the very first date at the stage of admission and disposed of. Thereafter, I informed the Petitioner about the same but the Petitioner showed his inability to attend this Hon’ble Court due to his ill health and showed his desire to appoint me as his Constituted Attorney (CA) to represent him in the above Petition through an Advocate and to give instructions to the Advocate to restore the above Writ Petition till the final hearing.” 7 In the first Notice of Motion No.33/2005 the Petitioner stated that as the Petitioner was appearing through its representative in person was not aware of the procedure followed in the Court, as such, he could not attend the matter when it was called out for admission. Whereas, in the second Notice of Motion No.619/2009, the Petitioner stated that the Managing Partner was not keeping good health and that first time, it learnt in the first week of November, 2009 that the above Writ Petition was dismissed on 20.12.2004. 8 Both the above statements made run counter to each other. This itself shows that the Petitioner has made false *5* statements on oath for seeking favourable orders. Considering the affidavits filed in support of both the Notice of Motions, there is no doubt whatsoever in our mind that the Petitioner has made not only totally incorrect statements but false one knowing them to be false statements. We, therefore, express our displeasure as to the manner in which the Petitioner made false statements in the anxiety to get favourable orders from this Court. 9 In our considered opinion, the incorrect and false statements made in the motion seeking condonation of delay itself is sufficient to reject the motion without any further inquiry as to whether the averment made in the motion reveals sufficient cause to condone the delay. That the party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning the delay. The Apex Court in the matter of Binod Bihari Singh vs. Union of India, (1993) 1 SCC 572, has held that if a party makes a false statement on oath for obtaining favourable order in the case, the Court should reject its application. 10 Considering these facts, we are of the opinion that in the present case the Petitioner has made false statements on oath and is not entitled for any relief from this Court. 11 In the result, both the Notice of Motions are dismissed *6* with costs of Rs.10,000/- (Rupees Ten Thousands) each. Costs to be deposited in this Court within four weeks from today for being paid to the Respondents. (K.K.TATED, J.) (V.C.DAGA, J.)