1 caf4851-10 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 4851 OF 2010 IN FIRST APPEAL ST. NO. 32248 OF 2010 The National Insurance Co. Ltd. .. Applicant V/s. Jitendra H. Varma & Anr. .. Respondents ..... Mr. Ramesh Cheulkar for the applicant. Mr. S. R. Chavanke for respondent No.1. ..... CORAM : A.S.OKA, J. DATE : JULY 28, 2011. P.C.: Heard the learned counsel appearing for the applicant and the learned counsel appearing for the respondent No.1. Paragraph No.1 of the order dated 1st July, 2011 reads thus: “1. Perused the additional affidavit of the Officer of the applicant. Though there is some explanation, as to why a photo copy of the certified copy which was ready on 20th June 2009 was relied upon, there is absolutely no explanation for delay in applying for the certified copy from 7th may 2009 till 9th November 2010. The learned counsel for the applicant seeks time to file one more affidavit for explaining said delay. By way of indulgence, time of three weeks from today is granted to file such affidavit.” 2. The applicant has filed additional affidavit of Shri Prabhakar A. Shetty who is its Assistant Manager. It is true that the 2 caf4851-10 statements made in the said affidavit are to some extent contrary to the stand taken earlier. In the affidavit, it is disclosed that on the basis of the impugned Award dated 7th May, 2009, recovery application was filed on 10th July, 2009. Paragraph Nos. 5 to 12 of the said affidavit read thus: “5. I say that subsequent to sending of Notice to Branch 13, in turn Branch 13 vide their letter dated 24.08.2009 sent back said Notice, file and order to DO 13 for deliberation. 6. I say that in view of receipt of Recovery application and Notice thereof appellant co vide letter dated 26.08.2009 appointed Advocate Abhyankar to defend the matter. Filed WS opposing recovery certificate on ground of ex-parte Judgment and prayed for setting aside the Judgment on ground of ex-parte order. 7. I say that certified copy was not applied as recovery application were opposed and were prayed that impugned Judgment be set aside. No decision as to filing of appeal was taken hence CC was not applied by appellant co. 8. I say that the certified copy was not applied as investigation in the mater was decided hence investigator came to be appointed vide our letter 28.08.2009. 9. I say that investigator Report was received by DO 13 on or about 14.12.2009, wherein fraud was revealed by investigators thus vide Appellant Co.'s letter dated 15.12.2009 Adv. Abhayankar were advised to Amend WS as to Fraud. 10. I say that Adv. Abhyankar vide his letter dated 20.01.2010 advised appellant co. to file Appeal against the said impugned Judgment. 11. I say that subsequent to Advice of Adv. Abhyankar, DO vide his letter dated 21.01.10 forwarded Xerox copy of proceedings along with xerox copy of impugned 3 caf4851-10 Judgment obtained by Advocate Mr. A. S. Jagdale to RO. 12. I say that subsequent to instruction to file appeal, the appellant's advocate submitted Draft copy of appeal and both CA for approval which was duly acknowledge by RO on 22.03.2010. Further sought original certified copy as copy given to him was xerox copy. In turn DO immediately call on Adv. Abhyankar in and around 1st week of April 2010 or so and asked him to furnish the original certified copy so as to file appeal at earliest time.” 3. Thereafter in paragraph No.13, it is stated that on 4th August, 2010 and 22nd October, 2010, the applicant reminded its advocate to forward the certified copy and the advocate forwarded the certified copy on 15th November, 2010. Another advocate was appointed to obtain the certified copy, however, the earlier advocate forwarded the certified copy to the Divisional Office on 15th November, 2010. In paragraph No.18, the deponent Mr. Shetty has stated thus: “18. I say that the ROI vide letter dated 29.11.2010 wrote to Advocate on record and handed over original certified copy for filing appeal which was applied on 9.11.2010. The copy of th said letter dated 29.11.2010 and copy of original certified copy which was applied on 9.11.2010 is already taken on record through previous Affidavit No.398/11 hence not attached again.” 5. It is true that there is a long delay in preferring an Appeal. An occasion for seeking condonation of delay arises only when there is some default on the part of a litigant. The delay has been explained by the affidavit. For deciding the application of condonation of 4 caf4851-10 delay, this Court will have to take liberal approach. 6. However, this is a case where the first respondent will have to be compensated by awarding substantial amount by way of costs. The amount is quantified at Rs.15,000/-. Accordingly, Rule is made absolute in terms of prayer clause (a) subject to condition of the applicant paying an amount of Rs.15,000/- to the first respondent within a period of six weeks from today. Deposit of the amount of costs with the Tribunal within stipulated time shall be also treated as sufficient compliance. If the amount is not deposited within the stipulated time, this applicant and application for stay shall be dismissed for non prosecution without further reference to the Court. (A.S.OKA, J.)