TMI Blog2020 (1) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for condonation of delay to advance justice. For that reason there must be sufficient cause to be understood in the proper spirit, etc. in proper perspective to the obtaining fact-situation. The other factors to be considered as to whether there is any gross negligence, lack of bonafideness, reasonableness, inordinate delay, conduct, behaviour, attitude of the applicant and others while considering an application for condonation of delay. There is an inordinate delay in filing the restoration application which is not accompanied with either any application for condonation of delay or any prayer in the restoration application to condone the inordinate delay - there are no merit in the application for restoration of appeal - appeal dismissed. - MP-PMLA-6022/LKW/2019 (Resto.) In FPA-PMLA-186/LKW/2011 - - - Dated:- 3-1-2020 - Shri G. C. Mishra Acting Chairman For the Applicant/Appellant : Ms. Shikha Sapra, Advocate, Mr. Suryakant Sinha, Advocate For the Respondent : Mr. Nitesh Rana, S.P.P., Mr. Ali Khan, Advocate, Mr. A.R. Aditya, Advocate And Ms. Sanjana Rajput, Advocate JUDGMENT MP-PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the file and finding no status enquired from this Hon ble Appellate Tribunal s Registry and came to know that consequent to default in appearance, the Hon ble Appellate Authority vide Order dated 19.08.2015 dismissed the appeal for non-appearance. (vi) That the default in appearance or delay in filing restoration application is totally inadvertent and occasioned on account of reasons recorded supra which the Hon ble Appellate Tribunal may appreciate is neither deliberate nor contumacious. (vii) That all other cognate appeals preferred by various Appellants against contextual Order are still pending and now listed for hearing on 06.05.2019 and 11.07.2019. (viii) That the Applicant has a good case on merit as the attached property was purchased years before the alleged offence under PMLA purportedly committed on 2009 and as the property at the time of provisional attachment itself was under mortgage to Union Bank of India and therefore the impugned Order being contrary to law propounded by the Hon ble Appellate Tribunal in the matter of IDBI Bank Ltd., Vs. Deputy Director of Enforcement as reported in 2018SCCOnline ATPMLA16 and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears no merit in the petition of the appellant for this purpose. c) That, the above mentioned PAO No. 04/2010 has been confirmed by the Ld. Adjudicating Authority vide its Order dated 06.04.2011 in O.C. No. 76/2010 whereby the Ld. Adjudicating Authority observed that Shri Madhu Koda and his associates through various companies including the appellant company were indulged and knowingly assisted in the process of activity connected with the proceeds of crime and projected it as untainted property under the garb of genuine and bonafide investments. The Ld. Adjudicating Authority confirmed that fact that these properties were involved in money laundering and hence are proceeds of crime and are liable for attachment. d) That, on subsequent date i.e. 19.08.2015, it was observed by the Ld. Appellate Tribunal that no one on behalf of the appellant was present to represent the case even after taking it up again and again for hearing. Therefore, Ld. Appellate Tribunal dismissed the appeal vide its order in default of appearance of the Appellant or its Counsel. e) That, the instant application for restoration of appeal was never filed in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spitalization records at the time of arguments for the perusal of the Tribunal. No such records have been produced during the course of arguments. 6. To the contrary the respondent has relied on the judgment of Hon ble Supreme Court in the matter of Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649], and also relied on the case of General Manager, Northern Railway vs. Vishva Nath Nangia in 118(2015) before Hon ble Delhi High Court submitted that the appellant has never explained any valid reasons instant application for restoration of appeal and that the reason of non-availability of its counsel, non-filing of the restoration application in last 44 months and that the delay of about 1325 days is misleading, deliberate, mischievous and intentional. During the course of arguments, it was contended by the learned counsel for the respondent that some of the appeals arising out of same ECIR have already been dismissed and that is the reason why now near about four years from the date of the dismissal of the present appeal the applicant is trying to revive the appeal to protect the tainted properties. 7. Heard both the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Glass Tube Ltd. But Ms. Shikha Sapra, learned advocate had Vakalatnama in original appeal FPA-PMLA-186/LKW/2011 which was dismissed for default. 10. Admittedly the restoration application has been filed without any application for condonation of delay. The appeal was dismissed for default on 19.08.2015. The application for restoration has been filed on 02.05.2019. There is a delay of about 1350 days. In the said application it is pleaded at Para No(s). 5, 6, 7 that: 5. That as the next date of hearing i.e. on 19.03.2015 Counsel s father Shri Ashok Sapra was not well and a junior counsel appeared and as no hearing took place on the said date on account of Respondent s Counsel s non availability she did not note the date being new in profession. 6. That due to father s ailment, undersigned Counsel lost track of the matter and same went unattended. Later Counsel s father Advocate Ashok Sapra left his heavenly abode in January 2017 after prolonged illness and thereafter counsel s mother unable to bear the loss, became seriously ill and was hospitalized on several occasions. The hospitalization records I shall produce at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intimated the appellant about her compulsion/situation of not appearing in the appeal. Further, the other two counsels who have signed the Vakalatnama and represented the appellant in the appeal on various occasions could have appeared on 19.03.2015, 30.04.2015 19.08.2015. 15. The appellant though engaged another set of lawyers, after filing of the present restoration application, has not filed any application for condonation of delay/affidavit to support the restoration application filed by the applicant. No doubt in an appeal, the presence of the appellant is not required on each and every date. But the appellant should remain vigilant about the status/stage of the appeal. The appellant is a company and could have employed at least one person to follow the appeal. No reason has been cited by the applicant as to why the appellant did not follow the appeal or to know the status of the appeal for a period of 1350 days. 16. It is contended by the applicant that on 19.08.2015 the learned counsel for the respondent was not present. The said ground does not absolve the applicant from not attending the appeal on 19.08.2015 and on two prior occasions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the obtaining fact-situation. The other factors to be considered as to whether there is any gross negligence, lack of bonafideness, reasonableness, inordinate delay, conduct, behaviour, attitude of the applicant and others while considering an application for condonation of delay. 20. The Hon ble Supreme Court in the aforesaid case has summarized the principles on the basis of the judgments referred therein. The relevant portions of the said judgment are reproduced below: 10. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another[13], where a two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. 13. Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai[19], the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil[20] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: - 23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The appeal was then a part-heard matter. The Full Bench of this Tribunal, in the interest of justice, did not pass any adverse order and thus gave proper opportunity to the appellant to hear the appeal on merit. (ix) Before the conclusion of argument the matter has been placed before Division Bench from Full Bench. Prior to the date of passing of the order dated 19.08.2015, the then Hon ble Chairperson Justice Anil Kumar tenure was over in the month of July, 2015. (x) There is an unexplained inordinate delay of 1350 days that attracted the doctrine of prejudice in favour of the respondent. (xi) Even the liberal construction to the extent possible is considered then also the application for restoration of appeal does not merit consideration as neither there is any application for condonation of delay nor any prayer for condoning the delay in the main application nor sufficient reasons have been given to condone the inordinate delay. (xii) The applicant was not the only advocate engaged in the appeal. There are two other advocates who not only signed the Vakalatnama but also personally present for the appellant on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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