Heard Mr. Soni, learned advocate for the applicant and Mr. Pahwa, learned advocate for the opponent.
2. Rule. Mr. Pahwa, learned advocate has waived service of Rule. With consent of learned advocate application is taken up for final decision today.
3. The applicant has taken out captioned Civil Application No.74 of 2012 seeking below mentioned relief:-
"8B By exercising powers u/s 5 of Limitation Act, Your Lordships may be pleased to condone the delay of about 179 days caused in filing the above mentioned MCA for Review/Recall in Company Petition No.130/2010 in the interest of justice."
4. The applicant has claimed that it has filed a separate application seeking review of order dated 9.8.2011 passed in Company Petition No.130 of 2010. It is also stated by the applicant that delay of 179 days has occurred in filing the said application for review/recall of the order dated 9.8.2011 in Company Petition No.130 of 2010. By present application, the applicant has prayed that the said delay of 179 days may be condoned.
5. It appears from the record and from the submissions made by learned counsel for the applicant that after the said order dated 9.8.2011 was passed in Company Petition No.130 of 2010, for some time, any action in connection with the said order were not taken by the applicant. Subsequently, on or around 3.10.2011, the applicant preferred appeal, i.e. OJ Appeal No.68 of 2011 against the said order dated 9.8.2011 in Company Petition No.130 of 2010. The opponent herein has asserted that the said appeal was filed after delay of 11 days. It appears that the said delay was condoned. Subsequently, after hearing the parties, the Division Bench passed order on 16.1.2012 and dismissed the appeal as withdrawn with liberty to the appellant to file review application. After the said proceedings and the order dated 16.1.2012, the review application came to be filed; on 5.3.2012 i.e. after delay of 179 days. Therefore, this application seeking condonation of delay is filed.
5.1 Learned advocate for the applicant has submitted that during the intervening period, the applicant was prosecuting remedy of appeal and the Division Bench permitted the applicant to prefer review application and that therefore, there is sufficient explanation for the period of delay and therefore, the application may be granted.
6. The application is opposed by Mr. Pahwa, learned advocate for the opponent. He also submitted that any reason which can be considered as sufficient cause is not made out and therefore also, the application does not deserve to be entertained.
7. So as to ascertain whether there is any merits in the substantive application seeking review of earlier order, learned counsel was asked to support and justify the request for review of the order dated 9.8.2011 and to show any apparent error on the face of the order which would require or justify review / recall of the order, so that if the applicant can make out even prima facie case justifying request for review / recall of the order dated 9.8.2011 in Company Petition No.130 of 2010, then, the request for condoning delay caused in preferring application may be accordingly considered.
8. At the outset, it is necessary to note that the Division Bench passed the order disposing off the appeal after recording applicant's submission that the applicant desires to prefer application for review of the order on 16.1.2012, whereas present application is filed on 5.3.2012. Even after the order passed by the Division Bench, delay is caused in filing present application. The said delay is over and above the delay caused at the initial stage, i.e. immediately after the order dated 9.8.2011.
9. The applicant did not file appeal against the said order within prescribed time limit nor the applicant preferred application seeking review of the order within prescribed time limit.
10. Though the applicant has failed to make out sufficient cause to substantiate and justify the request to condone delay of 179 days caused in filing the application for review of the order. However, the said request is, considered in light of the fact that the Division Bench has permitted the applicant to prefer present application. Therefore, though the applicant has failed to make out sufficient cause in support of the application however with a view to affording opportunity to the applicant to prosecute the application and allowing opportunity of being heard on merits and since Division Bench has allowed the applicant to submit the application, the request to condone the delay is accepted and granted.
Thus, the relief prayed for in paragraph 8-B is granted. Application is allowed accordingly. Rule is made absolute to aforesaid extent.
(K.M.Thaker, J.) kdc Top