TMI Blog2019 (5) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Motion. There is no explanation as to why such a modified notice of motion was sent to the advocate. Firstly, there is a default on the part of the Department as objections were not removed. Secondly, the Department refused to pay even a single farthing to the junior Counsel who was engaged in August, 2017 to file a notice of motion for restoration. We fail to understand as to how the Department expects the Advocate to file a notice of motion for restoration to get the appeal restored and to remove the office objections in the appeal, without receiving single farthing from the Department even for out of pocket expenses. There is a complete justification for the said advocate who refused to file the notice of motion without receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated time, the appeal will stand rejected in exercise of powers under Rule 986 of the High Court Original Side Rules. The delay in preferring Appeal was condoned on 17th April, 2017. The conditional order became operative as the objections in Appeal were not removed. Notice of Motion No.565 of 2018 was taken out by the applicant which was lodged on 19th June, 2018 for restoration of the appeal. There was a delay of 619 days in filing the Notice of Motion. Under the order dated 4th October, 2018 on the request made by the learned Counsel appearing for the applicant, this Court permitted the applicant to withdraw Notice of Motion No.565 of 2018 with liberty to file a fresh motion on the same cause of action. Accordingly, the present No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is a specific allegation made in paragraph 5 that the said junior Counsel refused to do anything in the matter as he had not received his fees and agreed to give his 'no objection' in the matter. We have perused the letter dated 16th August, 2017 addressed by the Deputy Commissioner of CGST, Belapur said to the junior Counsel. The letter refers to the fact that by a letter dated 3rd August, 2017, the said junior Counsel demanded advance of ₹ 4,000/for meeting the out of pocket expenses for preparing / filing of notice of motion/ removing of objections. The letter records that the draft notice of motion / chamber order for restoration has not been forwarded to the Department. Even according to the Department, the said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned in the email does not appeal to the Deputy Commissioner, the junior Counsel had no objection if the matter was assigned to the another advocate. 4. Notwithstanding the clear statements made in the email that in paragraph nos. 5 and 6 of the affidavit in support, allegations have been made against the learned junior Counsel that he refused to do anything and he refused to file a Notice of Motion for restoration. 5. Three weeks after receiving email dated 17th August, 2017, the Department issued a letter of appointment dated 11th September, 2017 appointing another junior counsel. Paragraph 7 contains an assertion that on 9th March, 2018 an Officer was deputed to meet the junior Counsel who was appointed on 11t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il to the said junior Counsel wherein it was mentioned that there was a delay on the part of the panel Counsel in preparation of draft notice of motion. The said email was responded by the said panel Counsel by his email dated 24th May, 2018. Perhaps, the panel Counsel had an objection to the ground added by the Department as he has mentioned that being an Advocate on record, he will have to bear the finding of Court and it will affect his prospects . 7. There is one important aspect which needs to be noted is the correspondence exchanged between the junior Counsel engaged in August, 2017 and the Department which shows that the expectation of the Department was that the junior Counsel should take steps by filing notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a default on the part of the Department as objections were not removed. Secondly, the Department refused to pay even a single farthing to the junior Counsel who was engaged in August, 2017 to file a notice of motion for restoration. We fail to understand as to how the Department expects the Advocate to file a notice of motion for restoration to get the appeal restored and to remove the office objections in the appeal, without receiving single farthing from the Department even for out of pocket expenses. Considering the correspondence enclosed to the affidavit-in-support, there is a complete justification for the said advocate who refused to file the notice of motion without receiving requisite amount as mentioned in the bill submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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