# Imperia Structures Ltd v. Ankur Sharma & Ors. 930 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 9 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-23
- **Case number:** Matter Under Article 227 No. 2509 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imperia-structures-ltd-v-ankur-sharma-ors-930-indian-law-reports-allahabad-52545
- **Pages:** 11

## Headnote

Civil Law - The Constitution of India,
1950-Article 227 - Limitation Act, 1963 -
Section 5-Condonation of delay of 558
days- The resignation of a single employee
given a month prior to passing of the order
dated 07.09.2022
and
the
imposition
of
moratorium for a period of five months are
being set up as excuse for the inordinate delay
of 558 days in filing the appeal, rather than
providing a sufficient cause for the delay-NCDRC
has exercised its discretion in rejecting the
application for condonation of delay of 558 days
on sound reasons and the impugned order
rejecting the application for condonation of
delay in filing the First Appeal does not warrant
any interference by this court. (Para 25 & 26)

Petition dismissed. (E-15)

List of Cases cited:

## Text

9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
929
20. The learned counsel for the
private opposite party next submitted that the
private opposite party-Concrete Fabricators
Karmchari Union is a Union of workmen, who
have not been paid any wages since long and a
huge sum of money is payable to them
towards the arrears of wages. In the order
dated 26.09.2008 passed in Writ-C No.
1004625 of 2008, this court had recorded the
submission made on behalf of the petitioner
that the petitioner was ready to pay 50%
amount and furnish bank guarantee for the
remaining amount before the Deputy Labour
Commissioner. The learned counsel for the
opposite party-Union states that the petitioner
has complied with the aforesaid order in
respect of merely 14 employees whereas 53
employees are members of the Union and all
of them are entitled to get the amount.

21. The learned counsel for the
petitioner state that the petitioner has made
payment of the amount in respect of 27 more
employees.

22. In these circumstances, it would
be just and proper to make the order setting
aside the ex-parte award subject to the
condition that the petitioner shall pay a sum of
Rs.10,000/- per member of the Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki after adjusting the amount already
paid in respect of some of the members of the
Union. The amount lying in deposit, if any, in
this court or before the Industrial Tribunal,
should be released forthwith in favour of the
opposite
party-Concrete
Fabricators
Karmchari Union, Burhwal, Barabanki. The
recovery certificate dated 09.10.2012 issued
consequently for enforcing the ex-parte award
dated 17.10.2007 is also liable to be set aside.

23. In view of the foregoing
discussion, both the petitions are allowed. The
order dated 11.09.2008, passed by the
Presiding Officer, Industrial Tribunal - 2, U.P.
Lucknow
rejecting
an
application
dated
20.12.2007 filed by the petitioner for setting
aside the ex-parte award dated 17.10.2007 as
well as the ex-parte award dated 17.10.2007
passed by the Presiding Officer, Industrial
Tribunal-II, U.P. Lucknow in Award Case
No.302 of 2006 are set aside, subject to the
condition that the petitioner shall pay a sum of
Rs.10,000/- per member of the Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki after adjusting the amount already
paid in respect of some of the members of the
Union. The recovery certificate dated 09.10.2012
sent by the Deputy Labour Commissioner,
Faizabad to the Collector, Barabanki in
furtherance of the ex-parte award dated
17.10.2007 is also set aside. The amount lying in
deposit, if any, in this court or before the
Industrial Tribunal, shall be released forthwith
in favour of the opposite party-Concrete
Fabricators
Karmchari
Union,
Burhwal,
Barabanki. The parties are directed the parties
to appear before the Presiding Officer,
Industrial Tribunal-II, U.P. Lucknow for
hearing in the matter on 23.09.2024, on which
date, the Presiding Officer, Industrial TribunalII, U.P. Lucknow shall hear the parties'
submissions in respect of their respective claims
and defence and pass a fresh award
expeditiously, without granting any unnecessary
adjournments to any of the parties.
----------
(2024) 9 ILRA 929
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 2509 of 2024

Imperia Structures Ltd. ...Petitioner
Versus
Ankur Sharma & Ors. ...Respondents
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Srajak Srivastava, Aishwarya Pratap Singh,
Nishant Mishra

Counsel for the Respondents:
Sanjay Kumar Srivastava, Akshat Kumar

Civil Law - The Constitution of India,
1950-Article 227 - Limitation Act, 1963 -
Section 5-Condonation of delay of 558
days- The resignation of a single employee
given a month prior to passing of the order
dated 07.09.2022
and
the
imposition
of
moratorium for a period of five months are
being set up as excuse for the inordinate delay
of 558 days in filing the appeal, rather than
providing a sufficient cause for the delay-NCDRC
has exercised its discretion in rejecting the
application for condonation of delay of 558 days
on sound reasons and the impugned order
rejecting the application for condonation of
delay in filing the First Appeal does not warrant
any interference by this court. (Para 25 & 26)

Petition dismissed. (E-15)

List of Cases cited:

1. Chandi Prasad Vs Jagdish Prasad: (2004) 8
SCC 724

2. Basawaraj Vs Land Acquisition Officer: (2013)
14 SCC 81

3. Esha Bhattacharjee Vs Managing Committee
of Raghunathpur Nafar Academy: (2013) 12
SCC 649

4. Ajay Dabra Vs Pyare Ram, 2023 SCC OnLine
SC 92

5. Sheo Raj Singh (Deceased) Through Lrs. Vs
U.O.I., 2023 SCC OnLine SC 1278

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rishi Kapoor, the learned
counsel for the petitioner, Sri Sanjay
Kumar Srivastava, the learned counsel for
the opposite parties no.1 and 2 and perused
the records.
2. The opposite parties no.3 to 7
have been impleaded as proforma opposite
parties and, therefore, there is no need to
issue notice to them.

3. By means of the instant petition
filed under Article 227 of the Constitution
of India, the petitioner has challenged the
validity of an order dated 30.04.2024,
passed by the National Consumer Disputes
Redressal Commission, New Delhi in First
Appeal No. 244 of 2024 whereby an
application for condonation of delay of 558
days in filing the appeal has been rejected,
and consequently the Appeal has also been
dismissed.

4. The learned counsel for the
opposite parties no.1 and 2 has raised the
following preliminary objections, namely: -

(i) The petition has been
filed by an authorized signatory of
the petitioner-company and none of
the Directors or other principal
officers of the company has come
forward to file the petition. On the
contrary, the directors and other
principal officers of the company
have been arrayed as the opposite
parties no.3 to 7 to the petitioner,
which shows that the directors and
other principal officers of the
company are opposed to filing of
the petition;
(ii)
The
petitioner
has
challenged
the
order
dated
30.04.2024, passed by the National
Consumer
Disputes
Redressal
Commission, New Delhi in First
Appeal No.244 of 2024, whereby
the
National
Commission
has
rejected the prayer for condonation
of delay in filing an appeal against
an order dated 07.09.2022 passed
9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
931
by the State Consumer Disputes
Redressal Commission, U.P. in
Complaint Case No.185 of 2019,
but the validity of the order dated
07.09.2022, passed by the State
Consumer
Disputes
Redressal
Commission, which order was
passed against the petitioner has
not
been
challenged
by
the
petitioner. Even if the petition is
allowed,
the
order
dated
07.09.2022, passed by the State
Consumer
Disputes
Redressal
Commission would remain in force
and the order passed by this Court
will be a futile order.
(iii) Without challenging
the validity of the order dated
07.09.2022, passed by the State
Consumer
Disputes
Redressal
Commission, the petitioner has
sought an interim relief for staying
the execution of the order dated
07.09.2022, which interim relief,
not being incidental to or in aid of
any main relief, cannot be granted.
(iv) The petition was filed
on 16.05.2024 and the petitioner
has concealed the fact that on
09.05.2024 the counsel for the
petitioner-judgment
debtor
in
Execution Application No.93 of
2022 filed for execution of order
dated 07.09.2022, had requested for
grant of time for complying with
the judgment and order dated
07.09.2022 by making payment of
Rs.25,00,000/-
on
or
before
17.05.2024, second installment of
Rs.15,00,000/- by 27.05.2024 and
the remaining amount on or before
15.06.2024.
This
request
was
accepted by the State Consumer
Disputes Redressal Commission
and accordingly time was granted
to the petitioner for depositing the
entire amount in three installments
as
aforesaid.
A
petitioner
approaching this court to invoke its
discretionary
power
of
superintendence under Article 227
of the Constitution of India should
come
with
clean
hands. The
aforesaid concealment made by the
petitioner renders the petition liable
to be dismissed.
(v) The learned counsel for
the opposite parties no.1 and 2 has
further
submitted
that
having
requested for depositing the entire
amount
in
installments
which
request has been accepted by the
State Consumer Disputes Redressal
Commission,
the
petitioner
is
estopped from challenging the
validity
of
the
execution
proceedings against it.

5. Per contra, the learned counsel
for the petitioner has submitted that the
petitioner has been filed through an
authorised signatory, who has been duly
authorised through a resolution of the board
of directors of the petitioner company,
therefore the first preliminary objection is
meritless. I also find that a person
authorised by the board of resolution of a
company can file a petition on behalf of the
company. Therefore, the first preliminary
objection raised by the learned Counsel for
the opposite parties no. 1 and 2 is rejected.

6. The learned Counsel for the
petitioner has submitted that the order
dated 07.09.2022 passed by the State
Consumer Disputes Redressal Commission,
U.P. in Complaint Case No.185 of 2019
stands
merged
in
the
order
dated
30.04.2024,
passed
by
the
National
Consumer Disputes Redressal Commission,
932 INDIAN LAW REPORTS ALLAHABAD SERIES
New Delhi in First Appeal No. 244 of 2024
and, therefore, there is no requirement to
challenge the order dated 07.09.2022
passed by the State Consumer Disputes
Redressal Commission, U.P. separately. In
case the petition is allowed and the order
dated 30.04.2024, passed by the National
Consumer Disputes Redressal Commission
is set aside, the order dated 07.09.2022
passed by the State Consumer Disputes
Redressal Commission, U.P. would stand
set aside automatically.

7. The principal of merger has
been explained by the Hon'ble Supreme
Court in Chandi Prasad v. Jagdish
Prasad: (2004) 8 SCC 724, in the
following words: -

"23. The
doctrine
of
merger is based on the principles of
propriety in the hierarchy of the
justice-delivery
system.
The
doctrine of merger does not make a
distinction between an order of
reversal, modification or an order
of confirmation passed by the
appellate
authority.
The
said
doctrine
postulates
that
there
cannot be more than one operative
decree governing the same subjectmatter at a given point of time.
24. It is trite that when an
appellate court passes a decree, the
decree of the trial court merges
with the decree of the appellate
court and even if and subject to any
modification that may be made in
the appellate decree, the decree of
the appellate court supersedes the
decree of the trial court. In other
words, merger of a decree takes
place irrespective of the fact as to
whether the appellate court affirms,
modifies or reverses the decree
passed by the trial court. When a
special leave petition is dismissed
summarily, doctrine of merger does
not apply but when an appeal is
dismissed,
it
does.
[See V.M.
Salgaocar
and
Bros.
(P)
Ltd. v. CIT (2000) 5 SCC 373]
* * *
26. In Kunhayammed [(200
0) 6 SCC 359] it was observed:
(SCC p. 370, para 12)
"12. ... Once the superior
court has disposed of the lis before it
either way - whether the decree or
order under appeal is set aside or
modified or simply confirmed, it is the
decree or order of the superior court,
tribunal or authority which is the
final, binding and operative decree or
order wherein merges the decree or
order passed by the court, tribunal or
the authority below. However, the
doctrine is not of universal or
unlimited application. The nature of
jurisdiction exercised by the superior
forum and the content or subjectmatter of challenge laid or which
could have been laid shall have to be
kept in view."
27. The said decision has
been followed by this Court in a large
number of decisions including Union
of India v. West Coast Paper Mills
Ltd. [(2004) 2 SCC 747]
28. However,
when
an
appeal is dismissed on the ground
that delay in filing the same is not
condoned, the doctrine of merger
shall not apply."
(Emphasis added)

8. In the present case, the
petitioner had filed an appeal against the
order dated 07.09.2022 passed by the State
Consumer Disputes Redressal Commission
9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
933
with an enormous delay of 558 days and
the National Commission has rejected the
application for condonation of delay in
filing the appeal. The appeal was not
admitted and the merits of the order dated
07.09.2022 passed by the State Consumer
Disputes Redressal Commission were not
examined. In these circumstances, the order
dated 07.09.2022 passed by the State
Consumer Disputes Redressal Commission
did not get merged into the order dated
30.04.2024,
passed
by
the
National
Consumer Disputes Redressal Commission,
New Delhi in First Appeal No. 244 of
2024.

9. The learned Counsel for the
petitioner has submitted that the opposite
parties no.1 and 2 are not 'consumers' as
per the definition contained in Section 2-D
of
Consumer
Protection
Act,
which
excludes the persons who have obtained
goods for resale or for any commercial
purposes. He has submitted that the
opposite parties no. 1 and 2 had purchased
a
commercial
unit
earmarked
for
establishing and running an ATM which is
a commercial purpose and ,therefore, they
are not consumers and the Consumer
Disputes Redressal Commission had no
jurisdiction over the matter.

10. The order dated 07.09.2022
passed by the State Consumer Disputes
Redressal Commission did not get merged
in the order dated 30.04.2024 passed by the
National Consumer Disputes Redressal
Commission
whereby
the
petitioner's
application seeking condonation of delay in
filing the appeal has been rejected and the
petitioner has not challenged validity of the
order dated 07.09.2022 passed by the State
Consumer Disputes Redressal Commission.
Therefore, this Court need not examine the
aforesaid submission made by the learned
Counsel
for
the
petitioner
regarding
validity of the order dated 07.09.2022
passed by the State Consumer Disputes
Redressal Commission.

11. In absence of a final prayer
having been made for setting aside the
order dated 07.09.2022 passed by the State
Consumer Disputes Redressal Commission,
this Court cannot grant an interim relief
staying operation of the aforesaid order, as
the interim relief can only in incidental and
ancillary to the final relief and its purpose
is to protect the final relief from becoming
infructuous. However, the issue of grant of
interim relief is not of any significance, as
the petition itself is being decided finally.

12. What is under challenge before
this Court, is the order dated 30.04.2024
passed by the National Consumer Disputes
Redressal
Commission,
whereby
the
petitioner's
application
seeking
condonation of delay in filing the appeal,
has been rejected.

13. The National Consumer
Disputes Redressal Commission, New
Delhi has recorded in the impugned order
that in order to condone the delay the
applicant has to satisfy the Commission
that
there
was
sufficient
cause
for
preferring the first appeal after stipulated
limitation period. The Commission has
referred to the decisions of Hon'ble
Supreme Court in the cases of Basawaraj
and another Vs. Special Land Acquisition
Officer:
(2013)
14
SCC
81,
Esha
Bhattcharjee
Vs.
Raghunathpur
Nafar
Academy: (2013) 12 SCC 649 and Sridevi
Datla Vs. Union of India and others: (2021)
5 SCC 321 and came to a conclusion that a
first appeal under Consumer Protection Act
has to be filed within 30 days. Although,
the petitioner claimed that the order dated
934 INDIAN LAW REPORTS ALLAHABAD SERIES
07.09.2022 passed by the State Consumer
Disputes Redressal Commission came to
the petitioner's knowledge in August, 2023
when it was served with a notice of
Execution Application No.93 of 2022, the
petitioner was well represented before the
State Commission and it was not an exparte order. Hence the plea of lack of
knowledge of the order of the State
Commission does not appear to be
convincing. The petitioner had sought to
explain the reason for delay by stating that
due to Covid-19 pandemic some employees
were changed, but the impugned order
dated 07.09.2022 pertains to post Covid
period. The petitioner had not brought on
record any documents regarding this plea
of change of employees in the legal
department. Even if some employees of the
company leave, the legal cases of the
company cannot be left unattended for such
a long period.

14. In view of the aforesaid
discussion,
the
National
Consumer
Disputes Redressal Commission, New
Delhi came to the conclusion that the
reasons given for condonation of delay are
not convincing.

15. Challenging the validity of the
aforesaid order, the learned counsel for the
petitioner has drawn attention of this court
to
an
email
communication
dated
17.08.2022 sent by one Girish Chandra
Upadhyay to the Managing Director of the
petitioner-company
tendering
his
resignation. This email communication
does not make any mention to the
post/designation held by the sender of the
communication,
whose
email
ID
is
advocategirish@gmail.com.

16. The learned counsel for the
petitioner contends that the person who has
sent this email communication was holding
the post of Assistant General Manager
(Legal) in the company.

17. In Basawaraj v. Land
Acquisition Officer: (2013) 14 SCC 81,
the Hon'ble Supreme Court explained the
law regarding condonation of delay by
stating that: -

"12. It is a settled legal
proposition that law of limitation
may harshly affect a particular
party but it has to be applied with
all its rigour when the statute so
prescribes. The court has no power
to extend the period of limitation on
equitable
grounds.
"A
result
flowing from a statutory provision
is never an evil. A court has no
power to ignore that provision to
relieve what it considers a distress
resulting from its operation." The
statutory
provision
may
cause
hardship or inconvenience to a
particular party but the court has
no choice but to enforce it giving
full effect to the same. The legal
maxim dura
lex
sed
lex which
means "the law is hard but it is the
law", stands attracted in such a
situation. It has consistently been
held that, "inconvenience is not" a
decisive factor to be considered
while interpreting a statute.
13. The statute of limitation
is founded on public policy, its aim
being to secure peace in the
community, to suppress fraud and
perjury, to quicken diligence and to
prevent oppression. It seeks to bury
all acts of the past which have not
been agitated unexplainably and
have from lapse of time become
9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
935
stale.
According
to Halsbury's
Laws of England, Vol. 28, p. 266:
"605. Policy
of
the
Limitation Acts.-The courts have
expressed at least three differing
reasons supporting the existence of
statutes of limitations namely, (1)
that long dormant claims have
more of cruelty than justice in
them, (2) that a defendant might
have lost the evidence to disprove a
stale claim, and (3) that persons
with good causes of actions should
pursue
them
with
reasonable
diligence."
An
unlimited
limitation
would lead to a sense of insecurity
and uncertainty, and therefore,
limitation prevents disturbance or
deprivation of what may have been
acquired in equity and justice by
long enjoyment or what may have
been lost by a party's own inaction,
negligence or laches.
14. In P.
Ramachandra
Rao v. State of Karnataka [(2002) 4
SCC 578] this Court held that
judicially engrafting principles of
limitation amounts to legislating
and would fly in the face of law laid
down by the Constitution Bench
in Abdul Rehman Antulay v. R.S.
Nayak [(1992) 1 SCC 225] .
15. The law on the issue
can be summarised to the effect
that where a case has been
presented in the court beyond
limitation, the applicant has to
explain the court as to what was
the "sufficient cause" which means
an adequate and enough reason
which prevented him to approach
the court within limitation. In case
a party is found to be negligent, or
for want of bona fide on his part in
the facts and circumstances of the
case, or found to have not acted
diligently or remained inactive,
there cannot be a justified ground
to condone the delay. No court
could be justified in condoning
such
an
inordinate
delay
by
imposing any condition whatsoever.
The application is to be decided
only within the parameters laid
down by this Court in regard to the
condonation of delay. In case there
was no sufficient cause to prevent a
litigant to approach the court on
time condoning the delay without
any
justification,
putting
any
condition whatsoever, amounts to
passing an order in violation of the
statutory
provisions
and
it
tantamounts
to
showing
utter
disregard to the legislature."

18.
In Esha Bhattacharjee v. Managing
Committee
of
Raghunathpur
Nafar
Academy: (2013) 12 SCC 649, the Hon'ble
Supreme Court discussed the law regarding
condonation of delay as explained in
various precedents and summarized the
same as follows:-

"21. From the aforesaid
authorities the principles that can
broadly be culled out are:
(i) There should be a
liberal, pragmatic, justice-oriented,
non-pedantic
approach
while
dealing with an application for
condonation of delay, for the courts
are
not
supposed
to
legalise
injustice but are obliged to remove
injustice.
(ii) The terms "sufficient
cause" should be understood in
their proper spirit, philosophy and
936 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose regard being had to the
fact that these terms are basically
elastic and are to be applied in
proper perspective to the obtaining
fact-situation.
(iii)
Substantial
justice
being paramount and pivotal the
technical considerations should not
be given undue and uncalled for
emphasis.
(iv) No presumption can be
attached to deliberate causation of
delay but, gross negligence on the
part of the counsel or litigant is to
be taken note of.
(v) Lack of bona fides
imputable to a party seeking
condonation
of
delay
is
a
significant and relevant fact.
(vi) It is to be kept in mind
that adherence to strict proof
should not affect public justice and
cause public mischief because the
courts are required to be vigilant so
that in the ultimate eventuate there
is no real failure of justice.
(vii) The concept of liberal
approach has to encapsule the
conception of reasonableness and it
cannot
be
allowed
a
totally
unfettered free play.
(viii) There is a distinction
between inordinate delay and a
delay of short duration or few days,
for the former doctrine of prejudice
is attracted whereas to the latter it
may not be attracted. That apart,
the
first
one
warrants
strict
approach whereas the second calls
for a liberal delineation.
(ix) The
conduct,
behaviour and attitude of a party
relating
to
its
inaction
or
negligence are relevant factors to
be taken into consideration. It is so
as the fundamental principle is that
the courts are required to weigh the
scale of balance of justice in
respect of both parties and the said
principle cannot be given a total go
by in the name of liberal approach.
(x) If
the
explanation
offered
is
concocted
or
the
grounds urged in the application
are fanciful, the courts should be
vigilant not to expose the other
side unnecessarily to face such a
litigation.
(xi) It is to be borne in
mind that no one gets away with
fraud,
misrepresentation
or
interpolation by taking recourse to
the
technicalities
of
law
of
limitation.
(xii) The entire gamut of
facts are to be carefully scrutinized
and the approach should be based
on
the
paradigm
of
judicial
discretion which is founded on
objective reasoning and not on
individual perception.
(xiii) The State or a public
body or an entity representing a
collective cause should be given
some acceptable latitude.

22.
To
the
aforesaid
principles we may add some more
guidelines taking note of the
present day scenario. They are:
(a) An
application
for
condonation of delay should be
drafted with careful concern and
not in a half hazard manner
harbouring the notion that the
courts are required to condone
delay on the bedrock of the
principle that adjudication of a lis
on merits is seminal to justice
dispensation system.
9 All. Imperia Structures Ltd. Vs. Ankur Sharma & Ors.
937
(b)
An
application
for
condonation of delay should not be
dealt with in a routine manner on
the base of individual philosophy
which is basically subjective.
(c)
Though
no
precise
formula can be laid down regard
being had to the concept of judicial
discretion, yet a conscious effort
for
achieving
consistency
and
collegiality of the adjudicatory
system should be made as that is
the ultimate institutional motto.
(d) The
increasing
tendency to perceive delay as a
non-serious matter and, hence,
lackadaisical propensity can be
exhibited
in
a
non-challant
manner requires to be curbed, of
course, within legal parameters."
(Emphasis supplied)

19.

In Ajay
Dabra v. Pyare
Ram, 2023 SCC OnLine SC 92, the
Hon'ble Supreme Court held that:-

"5. What we have here is a
pure civil matter. An appeal has to
be filed within the stipulated
period, prescribed under the law.
Belated appeals can only be
condoned, when sufficient reason is
shown before the court for the
delay. The appellant who seeks
condonation of delay therefore
must explain the delay of each
day. It is true that the courts
should not be pedantic in their
approach while condoning the
delay, and explanation of each
day's delay should not be taken
literally, but the fact remains that
there
must
be
a
reasonable
explanation for the delay."
(Emphasis supplied)
20. In Sheo Raj Singh (Deceased)
Through Lrs. v. Union of India, 2023
SCC OnLine SC 1278, after discussing the
various precedents on the issue, the Hon'ble
Supreme Court summarized the principles
regarding condonation of delay in the
following words:-

"29. Considering
the
aforementioned
decisions,
there
cannot be any quarrel that this
Court has stepped in to ensure that
substantive rights of private parties
and the State are not defeated at
the
threshold
simply
due
to
technical considerations of delay.
However,
these
decisions
notwithstanding, we reiterate that
condonation of delay being a
discretionary power available to
courts, exercise of discretion must
necessarily
depend
upon
the
sufficiency of the cause shown
and the degree of acceptability of
the explanation, the length of delay
being immaterial. Sometimes, due
to want of sufficient cause being
shown
or
an
acceptable
explanation being proffered, delay
of the shortest range may not be
condoned whereas, in certain other
cases, delay of long periods can be
condoned if the explanation is
satisfactory and acceptable. Of
course, the courts must distinguish
between an 'explanation' and an
'excuse'.
An
'explanation'
is
designed to give someone all of the
facts and lay out the cause for
something. It helps clarify the
circumstances of a particular
event and allows the person to
point out that something that has
happened is not his fault, if it is
really not his fault. Care must
938 INDIAN LAW REPORTS ALLAHABAD SERIES
however be taken to distinguish an
'explanation' from an 'excuse'.
Although people tend to see
'explanation' and 'excuse' as the
same thing and struggle to find
out the difference between the two,
there is a distinction which,
though fine, is real. An 'excuse' is
often offered by a person to deny
responsibility and consequences
when under attack. It is sort of a
defensive
action.
Calling
something as just an 'excuse'
would imply that the explanation
proffered is believed not to be
true. Thus said, there is no formula
that caters to all situations and,
therefore,
each
case
for
condonation of delay based on
existence or absence of sufficient
cause has to be decided on its own
facts. At this stage, we cannot but
lament that it is only excuses, and
not explanations, that are more
often accepted for condonation of
long delays to safeguard public
interest from those hidden forces
whose sole agenda is to ensure that
a meritorious claim does not reach
the higher courts for adjudication.
(Emphasis supplied)

21. When we examine the facts of
the present case in light of the law relating
to condonation of delay in filing appeals as
explained in the above mentioned cases, we
find that the State Consumer Disputes
Redressal Commission, U.P. had decided
Complaint Case No.185 of 2019 by means
of an order dated 07.09.2022.

22. It was stated in the application
seeking condonation of delay of 558 days
in filing the appeal that due to Covid-19
pandemic, there was change of employees.
The concerned authorized representative of
the petitioner had also resigned and,
therefore, the petitioner-company could not
keep track of the judgment and order dated
07.09.2022, passed by the State Consumer
Disputes Redressal Commission, which
came to the knowledge in the month of
August, 2023, when the petitioner was
served with the notice of Execution
Application No.93 of 2022. The Directors
of the petitioner company were under
corporate commitment due to which they
could not appoint a new legal team and an
Advocate. It was further stated in the
application that in August, 2023, a new
counsel and a new Legal Manager were
appointed by the petitioner-company and
they decided to file an appeal. The
Corporate Insolvency Resolution Process
was initiated and a moratorium under
Section 14 of Insolvency and Bankruptcy
Code, 2016 was imposed against the
company by means of an order dated
31.08.2023
passed
by
the
National
Company Law Tribunal in Company
Petition IB (IBC) No. 525 of 2022. The
application does not make a mention of the
date till when the moratorium remained in
force and the learned counsel for the
petitioner has orally informed the court that
moratorium
remained
effective
till
01.02.2024. The petitioner has stated that
the delay in fling appeal is not intentional.

23. The petitioner contends that
the Assistant General Manager (Legal) of
the company had resigned on 07.08.2022,
i.e. a month prior to decision of the
complaint. No other specific fact has been
pleaded so as to make out a sufficient cause
for the delay of 558 days in filing the
appeal. The petitioner company claims to
have a team of officials looking after the
legal matters. In these circumstances, the
resignation tendered by a single employee a
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
939
month prior to decision of the complaint
would not justify the delay of 558 days in
filing the appeal.

24. The plea of moratorium
imposed on 31.08.2023, which remained
effective till 01.02.2024, i.e. for a period of
five months, also does not sufficiently
explain the delay of 558 days in filing the
appeal.

25. It appears that the resignation
of a single employee given a month prior to
passing of the order dated 07.09.2022 and
the imposition of moratorium for a period
of five months are being set up as excuse
for the inordinate delay of 558 days in
filing the appeal, rather than providing a
sufficient cause for the delay.

26. Therefore, this court finds that
the National Consumer Disputes Redressal
Commission, New Delhi has exercised its
discretion in rejecting the application for
condonation of delay of 558 days on sound
reasons and the impugned order rejecting
the application for condonation of delay in
filing the First Appeal does not warrant
amu interference by this court in exercise
of
its
discretionary
power
of
superintendence under Article 227 of the
Constitution of India.

27. The petition lacks merit and
the same is dismissed.
----------
(2024) 9 ILRA 939
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 3801 of 2024
Akhtar Khan ...Petitioner
Versus
D.J., Pratapgarh & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Aslam Khan

Counsel for the Respondents:
Sanjay Kumar Srivastava

Civil Law - Civil Procedure Code- Order XI
Rules 12 and 14 -Application under Order XI
Rules 12/14 of the Civil Procedure Code
rejected-revision rejected at the admission
stage-only prayer in Application Under Order XI
Rule 12/14 C.P.C. that the plaintiff no.1/1
should be directed to file the original Will -this
prayer is in the nature Rule 14 - no prayer
under Rule 12- the trial Court can order a party
to produce any document only when it is at
least prima facie satisfied that the document is
in possession or power of that party- defendant
has not pleaded in the written St.ment that the
Will is in possession or power of the plaintifffiled at belated stage.

Petition dismissed. (E-9)

List of Cases cited:

1. Udit Narain Singh Malpaharia Vs Addl.
Member Board of Revenue: AIR 1963 SC 786
2. Savitri Devi Vs D.J., Gorakhpur: (1999) 2 SCC
577

3. Jogendrasinhji Vijaysinghji Vs St. of Guj.:
(2015) 9 SCC 1

4. Hari Vishnu Kamath [AIR 1955 SC 233]

5. Vinod Kumar Bajaj (Since Deceased) Vs
Rajendri, 2018 SCC OnLine All 6489

6. Kamalia Brothers and Co. Vs St. of Guj.: AIR
1992 Guj 138 = 1991 SCC OnLine Guj 79

7. Rajkishore Prasad Vs St. of Orissa: AIR 1979
Ori 96 = 1979 SCC OnLine Ori 35

8. Ramlalsao Vs Tansingh Lalsingh: A.I.R. 1952
Nagpur 135