138 matter
Advocate@Law Field
(Querist) 16 February 2013
This query is : Resolved
I have filed one case u/s.138 in MM Court alongwith the application of condonation of delay and delay is of 45 days. The reason is previous advocate has misplaced the documents relating to the matter while shifting his office.
My query is that_ Is there any case law with relevance of the above facts which will be helpful for me while arguing the matter?
Is it maintainable and valid reason for condoning the delay especially when the reason is truth n not fake..
Raj Kumar Makkad
(Expert) 16 February 2013
Only truthful reasons are mentioned in the applications seeking delay condonation but the problem in this case is that this is highly time bound matter. If the complaint is not put before the concerned court within the one month of expiry of 15 days notice, the same is not maintainable and the remedy of recovery remains to be applied..
R Trivedi
(Expert) 16 February 2013
Pl refer to S.142 of the NI Act.
["Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]
So along with the complaint give factual reasons for delay, seeking delay condone in separate application. In general lawyers are treated as legal officers of the court and you should not be compromised for any inadvertent delay because of them, so court may entertain your cause.
prabhakar singh
(Expert) 16 February 2013
The law of limitation in any legislation is based on public policy.Section 142 is based on same analogy as is section 5 of limitation Act with one exception that section applies only to application and appeals but not to suits,yet all case laws delivered on section 5 may be utilized to condone delay under s.142 NI Act.If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay.
In your facts of the case an affidavit by the advocate in whose custody the papers were and got misplaced despite due diligence would be a legal necessity to prove that complainant was not negligent,and that there was due diligence by the advocate in custody of papers.If it is not there on record place it on the record before argument.
You can use the following case law in your favor: Supreme Court of India
Maniben Devraj Shah vs Mun.Corp.Of Br.Mumbai on 9 April, 2012.
visit:
http://www.indiankanoon.org/doc/184943168/
DEFENSE ADVOCATE.-firmaction@g
(Expert) 16 February 2013
1) You have to file application for delay condone , which will be opposed by accused.Either party will go in revision / appeal.
2) It IS your story that some advocate made lapses but it has to be proved in court with evidence otherwise it has no meaning.
SO THE DEFENSE HAS ALWAYS NO OF SUCH OPPORTUNITIES TO TAKE ADVANTAGE OF MISTAKES.
Deepak Nair
(Expert) 16 February 2013
Application for condonation of delay are allowed if the reason for delay can be justified. The court has the discretion to allow or reject the application.
