Order 1

Order Details: Order below Ex-1
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IN THE COURT OF METROPOLITAN MAGISTRATE
44TH COURT, ANDHERI, MUMBAI.
C.C.No.51/MISC/2019
M/s. Gannon Dunkerly & Co.Ltd., … Complainant
V/s.
Mr. Manish Sachdeva, … Accused
ORDER BELOW EXH.NO.1
(Passed on 04/07/2023)
1. In order to condone the delay of 24 days in filing the complaint
under Section 138 of the Negotiable Instruments Act, the petitioner
moved this application on the ground that, the complainant was
required to file the complaint on 23rd December, 2018. However, on the
very date the Christmas vacation started and therefore, the complaint
could not be filed.
2. The another ground for condonation of delay is that the Head
Office of the complainant company is located in Delhi and some time
was consumed in getting the official communication and authorization
regarding the filing of the present complaint. Thus, in short, according
to the complainant, there is a bonafide ground to condone the delay. It
is further pleaded that if the delay is not condoned, then the
complainant will face substantial lose. Hence, this application came to
be filed.
3. In view of the application, the notice was issued to the other side
for filing the say. On behalf of the accused/other side, his learned
advocate filed the say and resisted the claim on the ground that the
delay is intentional and, therefore, it cannot be condoned.
4. Having heard the learned advocates for both the sides, I perused
the record. Following points are formulated for my determination.
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SR.
NO.
POINTS FINDINGS
1. Whether the delay can be condoned? Yes
2. What Order? The application of
petitioner is allowed.
REASONS
AS TO POINT NO.1.
5. At the outset, it is pertinent to note here that in the present case
on hand, the accused is alleged to have dishonoured the cheque worth
Rs.25,00,63,948/ dt.29/09/2018. The record shows that the statutory
notice was served to the accused. However, according to the
complainant, the complaint could not be filed due to Christmas vacation
and for want of official communication.
6. In fact, though the learned advocate for the accused opposed the
application, yet there is no denial to receipt of the statutory notice
which is said to have been issued by the complainant regarding the
dishonour of the cheque. Thus, prima facie it appears that there is
substance in the complaint. Moreover, the accused has denied the facts
mentioned in the complaint. In such circumstances, it can be inferred
that there is bonafide contest between the parties to the case.
7. It would not be out of place to mention here that under Section
143 of Negotiable Instruments Act, this Court has power to condone the
delay if it is satisfied with the reason assigned by the complainant. In
fact, the complainant has stated on oath that the Christmas vacation
was scheduled on the date when the complaint was required to be filed.
Apart from this, it has been stated on oath that the delay was caused
due to procedural aspect.
8. Having gone through the record, it appears that the complainant
is company incorporated under Indian Companies Act. Therefore, the
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requisite prior permission is required for filing the present case on hand.
Thus, the reason mentioned by the complainant for delay in filing the
present case on hand appears to be bonafide.
9. In the case of Uday Shankar Triyar v/s. Ram Kalewar Prasad
Singh reported in AIR 2006 SC 269, the Hon'ble Appex Court held
that procedural provision should not be allowed to defeat the
substantive rights to cause injustice.
10. In the present case on hand, while filing the say to the present
application, the accused has not denied the fact of issuance of the
cheque which is said to have been dishonoured. In such circumstances,
now the question remains to be answered as to whether the cheque was
issued to discharge legal liability and for this purpose, the fulfleged trial
is required. In short, the substantive rights of the parties are involved in
this matter. So far as the delay is concerned, it can be compensated by
imposing appropriate costs. Thus, considering the pros and cons of the
case, I am inclined to allow this application.
11. In view of the discussion noted above, I have come to the
conclusion that the complainant has made out the case for condonation
of delay. Hence, I record my finding in affirmative for point no.1 and
proceed to pass the following order:
ORDER
1. The application is allowed subject to costs of Rs.5,000/ (Rupees
Five Thousand Only) which is payable to the other side. The
payment of costs shall be condition precedent.
2. The case be registered in accordance with law after compliance of
this order. Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
Date : 04/07/2023 44th Court, Andheri, Mumbai.
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