Tulsidas v. Patel Pvt.ltd

Sharayu Khot. IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2065 OF 2017 IN INCOME TAX APPEAL NO. 513 OF 2004 Tulsidas V. Patel Pvt.Ltd. …Applicant/ Appellant Versus Dy. Commissioner of Income Tax…Respondent ---------- Mr. Ravi Ratlessar, i/by D.M. Harish & Co., for the Appellant. Mr. N.C. Mohanty, for the Respondent. ---------- CORAM :M.S. SANKLECHA &RIYAZ I. CHAGLA, JJ. DATE : 19 January 2018 ORDER : 1.This Notice of Motion has been taken out forcondonation of 4885 days delay in seeking to set aside the order 1/4 14-NMA-2065-17.docdated 7 June 2004 passed by the Prothonotary & Senior Master,High Court, Bombay. The above impugned order dated 7 June2004 directed the Appellants to remove the office objections onor before 18 May 2004, failing which, by a self operating order,the Appeal itself would stand dismissed under Rule 986 of theBombay High Court (O.S.) Rules. This Appeal was dismissedprior to it being numbered for the purposes of its considerationfor admission by this Court. 2.The Affidavit dated 23 November 2017 in Support ofthe Notice of Motion has been filed by an Advocate after over 13years of dismissal of the Appeal. The reason for the inordinatedelay is that only recently on 13 November 2017 while checkingthe status of some other Appeals, it realised that this Appeal wasdismissed. The Affidavit states that it appears that the officeobjections were not removed due to oversight of his Clerk. Nofurther particulars are placed on record. The Affidavit states thatgrave hardship, injury and loss would be caused to theAppellant for no fault on its part. Therefore, it is prayed that the 2/4 delay be condoned. 3.One must not loose sight of the fact that the Appealitself was dismissed over 13 years prior to admission. It isimpossible at this stage, to state the reasons for not prosecutingthe Appeal even upto the stage of admission. It is likely theAppellant may have at that stage take a conscious decision notto prosecute this Appeal. It is not possible for us to second guessthe same. 4.No doubt one should be liberal in dealing with theapplication for condonation of delay. However, one must at thesame time keep in mind that condoning of the delay should notresult in accrued rights of the other party being defeated bysetting the clock back. The Applicant has been negligent inprosecuting their Appeal. We are not satisfied with the reasonsindicated in the Affidavit in Support seeking condonation ofdelay. Thus, we see no reason to condone such gross delay ofover thirteen years. 3/4 14-NMA-2065-17.doc 5.Accordingly, the Notice of Motion is dismissed. [RIYAZ I. CHAGLA J.] [M.S. SANKLECHA, J.] 4/4