1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO. 1773 OF 2009 IN APPEAL (LODG) NO. 301 OF 2009 IN SUMMONS FOR JUDGMENT NO. 164 OF 2005 IN SUMMARY SUIT NO. 3800 OF 2003 Chandrakant @ Chandubhaijivan Kalelia & Ano. .. Appellants Vs Lalji Bhai Goardhandas Mistry .. Respondent Mr. Uday B. Nighot and Mr. Sagar R. Agarkar for the Appellants Mr. Y.R. Dube for the Respondent CORAM : B.H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. DATE : 15th January, 2010 P.C.: 1. Heard Shri Nighot, the learned counsel for the Appellants, Shri. Dube for the Respondent / Plaintiff. 2. This Notice of Motion prays for condonation of delay of five years in filing Appeal (Lodging) No. 301 of 2009. Summary Suit No. 3800 of 2003 was filed by the present Respondent against the Appellants for recovery of Rs. 1,08,000/-. It was the case of the Plaintiff that he had advanced friendly loan of Rs. 1,00,000/- to the Defendants and he executed a writing dated 30.06.2001 in his /media/disk/15thJan/5.nma1773-09.sxw 2 favour. He had also issued a cheque bearing No. 107513 for Rs. One Lakh in favour of the Plaintiff by way of guarantee. The Defendants agreed to pay interest on the principal amount @ 2% per month from April 2003 to July 2003.. On receipt of notice, the Defendants appeared through Advocate and only defence taken by them was that the amounts have been paid in cash which were deposited in the Plantiff’s account. The Summons for Judgment was made absolute by the learned Judge on 19.10.2005 and the suit was decreed as prayed with costs. 3. The Defendants are aggrieved by the said decree and hence, they have filed Appeal (Lodging) No. 301 of 2009 but after four years. 4. In the affidavit in support of Motion, it has been stated that though the Appellants had engaged an Advocate, he had not informed them that the learned trial Judge had made the Summons for Judgment absolute on 19.10.2005 and the suit was decreed. It was for the first time that on 22.01.2009, he received the notice from the learned Advocate for the Plaintiff for settlement of Draft Decree. It has been further stated that the Defendants were under the impression that the suit filed by the Plaintiff was pending. On receiving the notice on 22.01.2009, the Defendants made enquiry /media/disk/15thJan/5.nma1773-09.sxw 3 with their Advocate appearing in Summary Suit and applied for a certified copy of the impugned Judgment and Order. They sought legal advice and in the meanwhile, made provisions for necessary amount towards Court fees and legal expenses. Finally, they filed the Appeal along with Notice of Motion for condonation of delay. 5. It is well settled that while dealing with the question of condoning delay under Section 5 of the Limitation Act, the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the Appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay. (AIR 1960 SC 260) and (AIR 1978 SC 537) 6. To say that the Advocate appearing for a party did not inform that the suit was decreed can, by itself, cannot be a reason for condonation of inordinate delay of about four years. If the Defendants had engaged an Advocate after receipt of the suit summons in September, 2003, it cannot be accepted that they got knowledge of the impugned order for the first time on 22.01.2009. There is nothing on record to indicate that the learned Advocate of the Defendant had, at no point of time, informed the Defendants /media/disk/15thJan/5.nma1773-09.sxw 4 about the impugned order. The Defendants could have file an affidavit of the learned Advocate in support of their contention. But they have not done so and for that matter, there is no other reason placed before us in support of the prayer for condonation of delay except the submissions that the delay caused is neither deliberate nor intentional. The lethargy and casual attitude on the part of the Defendants to approach this Court belatedly is writ large on the face of the record and in our opinion, the Defendants have failed to make out good and sufficient reasons to condone the delay. We are, therefore, not inclined to condone the long delay of about four years, even by levying costs. The Plaintiff is a pensioner and advancement of loan by him of Rs. One Lakh is not much in dispute. The defence taken was that the part of the loan was returned by depositing cash in the account of the Plaintiff . For all these reasons, the Notice of Motion for condonation of the inordinate delay must fail. 7. Hence, the Notice of Motion is rejected. [SMT. V.K. TAHILRAMANI, J.] [B.H. MARLAPALLE, J.] /media/disk/15thJan/5.nma1773-09.sxw