Bombay High CourtWP/1364/2025absolute

Mangal Abhushan v. Union Of India

2025-07-28Hon'Ble Shri Justice Jitendra Shantilal Jain , Hon'Ble Shri Justice M.S. Sonak6 pages

2025:BHC-OS:12247-DB Sayyed 17-WP.1364.2025.docx IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1364 OF 2025 WRIT PETITION NO.1364 OF 2025 M/s. Mangal Abhushan M/s. Mangal Abhushan

...Petitioner

Versus

Union of India & Ors.

...Respondents

_____________________________________________________ Mr. Saif Dingankar (through VC) a/w Mr. Omkar Wani i/by Mr. Aniket Mr. Saif Dingankar (through VC) a/w Mr. Omkar Wani i/by Mr. Aniket Mokashi for the Petitioner.

Mokashi for the Petitioner.

Mr. Jitendra B. Mishra a/w Mr. Rupesh Dubey for Respondent No.1-UOI. Mr. Jitendra B. Mishra a/w Mr. Rupesh Dubey for Respondent No.1-UOI. Mr. S. Deshpande a/w Mr. Karan Adik for Respondent Nos.2 & 3. Mr. S. Deshpande a/w Mr. Karan Adik for Respondent Nos.2 & 3. _____________________________________________________ CORAM :

M. S. Sonak & Jitendra Jain, JJ.

DATED : 28 July 2025 ORAL ORDER:-(Per M. S. Sonak, J.) 1.

Heard learned counsel for the parties.

Rule. The Rule is made returnable immediately at the request Rule. The Rule is made returnable immediately at the request of and with the consent of the learned counsel for the parties. of and with the consent of the learned counsel for the parties. 3.

The challenge in this petition pertains to the order dated The challenge in this petition pertains to the order dated 19/20 August 2024, by which the Commissioner of Customs (Appeals) 19/20 August 2024, by which the Commissioner of Customs (Appeals) dismissed the Petitioner's appeal on the grounds that it was filed after dismissed the Petitioner's appeal on the grounds that it was filed after the 60-day limitation period. The Commissioner also noted that the 60-day limitation period. The Commissioner also noted that although the appeal was lodged within the condonable period of 30 although the appeal was lodged within the condonable period of 30 days, no explanation was provided, and no sufficient cause was days, no explanation was provided, and no sufficient cause was demonstrated.

demonstrated.

Mr.

Mr. Dingankar, learned counsel for the Petitioner, explained Dingankar, learned counsel for the Petitioner, explained that the Advocate who appeared for the Petitioner before the Appellate that the Advocate who appeared for the Petitioner before the Appellate Authority was unwell and, therefore, missed filing the application for Authority was unwell and, therefore, missed filing the application for condonation of delay. However, Mr. Dingankar submitted that there was condonation of delay. However, Mr. Dingankar submitted that there was

Sayyed 17-WP.1364.2025.docx sufficient cause for this unintentional omission on the part of the sufficient cause for this unintentional omission on the part of the Petitioner's Advocate, and the Petitioner should not be made to suffer. Petitioner's Advocate, and the Petitioner should not be made to suffer. He submitted that substantial justice would require the Petitioner to be He submitted that substantial justice would require the Petitioner to be afforded an additional opportunity to explain the delay, particularly afforded an additional opportunity to explain the delay, particularly because the appeal was admittedly filed within the condonable period because the appeal was admittedly filed within the condonable period of 30 days provided under the statute. He submitted that since the of 30 days provided under the statute. He submitted that since the appeal was filed within 90 days, the previous Advocate was unsure appeal was filed within 90 days, the previous Advocate was unsure whether any such application is necessary.

whether any such application is necessary.

Mr. Dingankar, based on instructions from the Mr. Dingankar, based on instructions from the Petitioner, Petitioner, submitted that the Petitioner would pay costs up to Rs. 2,00,000/- submitted that the Petitioner would pay costs up to Rs. 2,00,000/-if the the Petitioner was given an additional opportunity. He submitted that this Petitioner was given an additional opportunity. He submitted that this would offset any prejudice to the Respondents i.e. the State authorities. would offset any prejudice to the Respondents i.e. the State authorities. 6.

Mr. Adik, learned counsel for the Respondent Mr. Adik, learned counsel for the Respondent Nos. 2 and 3, Nos. 2 and 3, submitted that no application for condonation of delay was ever filed, submitted that no application for condonation of delay was ever filed, and further, even in this petition, and further, even in this petition, no explanation is offered for the delay. no explanation is offered for the delay.

He, therefore, submitted that there was no error in the impugned order He, therefore, submitted that there was no error in the impugned order dismissing the appeal by invoking the bar of limitation. Mr. Dubey, who dismissing the appeal by invoking the bar of limitation. Mr. Dubey, who holds for Mr. Mishra, adopts Mr. Adik's contentions and urges that this holds for Mr. Mishra, adopts Mr. Adik's contentions and urges that this petition may be dismissed.

petition may be dismissed.

The rival contentions now fall for our determination. The rival contentions now fall for our determination. 8.

The Order-in-Original in this case was made on 28 December The Order-in-Original in this case was made on 28 December 2022 and communicated on 29 December 2022.

2022 and communicated on 29 December 2022.

Section 128 of the Customs Act, 1962 provides that any Section 128 of the Customs Act, 1962 provides that any person aggrieved by an order made under this Act by an officer of person aggrieved by an order made under this Act by an officer of customs lower in rank than the Principal Commissioner of Customs or customs lower in rank than the Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such within sixty days from the date of the communication to him of such decision or order. The proviso to Section 128(1), however, provides that decision or order. The proviso to Section 128(1), however, provides that

Sayyed 17-WP.1364.2025.docx the Commissioner (Appeals) may, if he is satisfied that the appellant the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further aforesaid period of sixty days, allow it to be presented within a further period of thirty days subject to "sufficient cause" being shown. period of thirty days subject to "sufficient cause" being shown. 10.

Thus, the primary rule is the presentation of an appeal within Thus, the primary rule is the presentation of an appeal within 60 days from the date of communication of the impugned order. 60 days from the date of communication of the impugned order. However, the Appellate Authority is empowered to condone a delay of However, the Appellate Authority is empowered to condone a delay of up to 30 days.

up to 30 days.

11.

In the present case, the Order-in-Original was communicated In the present case, the Order-in-Original was communicated to the Petitioner on 29 December 2022. After excluding this date, the to the Petitioner on 29 December 2022. After excluding this date, the appeal filed on 29 March 2023 could be said to have been filed on the appeal filed on 29 March 2023 could be said to have been filed on the 90th th day, i.e. within the delay condonable period of 30 days from the day, i.e. within the delay condonable period of 30 days from the expiry of the first 60 days.

expiry of the first 60 days.

12.

The Petitioner should have filed a formal application for The Petitioner should have filed a formal application for condonation of delay showing sufficient cause. However, the Petitioner condonation of delay showing sufficient cause. However, the Petitioner has explained in the petition that his Advocate was not keeping good has explained in the petition that his Advocate was not keeping good health and, therefore, had instructed the junior advocate to file the health and, therefore, had instructed the junior advocate to file the appeal before the Appellate Authority. The junior advocate failed to file appeal before the Appellate Authority. The junior advocate failed to file the application for condonation of delay. Paragraph 18 of the petition the application for condonation of delay.

Paragraph 18 of the petition also states that no correspondence or notice was sent to the Petitioner also states that no correspondence or notice was sent to the Petitioner about the defective filing due to the non-filing of the application for about the defective filing due to the non-filing of the application for condonation of delay.

condonation of delay.

13.

Thus, it is not correct to say that even in this petition, there Thus, it is not correct to say that even in this petition, there was no explanation offered for the 30-day delay in filing the appeal. was no explanation offered for the 30-day delay in filing the appeal. Such an explanation should have been offered before the Appellate Such an explanation should have been offered before the Appellate Authority. However, the Petitioner has explained the circumstances in Authority. However, the Petitioner has explained the circumstances in which no such application was filed before the Appellate Authority. which no such application was filed before the Appellate Authority. There is no reason to doubt the statement about the ill-health of the There is no reason to doubt the statement about the ill-health of the

Sayyed 17-WP.1364.2025.docx Petitioner's Advocate or that the matter was entrusted to a junior lawyer Petitioner's Advocate or that the matter was entrusted to a junior lawyer to file the appeal. The Petitioner has gained nothing by not filing the to file the appeal. The Petitioner has gained nothing by not filing the formal application after having entrusted the case papers to his formal application after having entrusted the case papers to his advocate.

advocate.

14.

Therefore, considering these exceptional circumstances Therefore, considering these exceptional circumstances coupled with the fact that the Petitioner has offered to pay costs of Rs. coupled with the fact that the Petitioner has offered to pay costs of Rs. 2,00,000/-, we propose to exercise our extraordinary jurisdiction and 2,00,000/-, we propose to exercise our extraordinary jurisdiction and condone this delay for instituting the appeal before the Appellate condone this delay for instituting the appeal before the Appellate Authority. In such cases, as was held by the Hon'ble Supreme Court in Authority. In such cases, as was held by the Hon'ble Supreme Court in the case of the case of N. Balakrishnan vs. M. Krishnamurthy N. Balakrishnan vs. M.

Krishnamurthy1, some lapse on the , some lapse on the part of the litigant concerned may always be present. However, that by part of the litigant concerned may always be present. However, that by itself is not a sufficient ground to nonsuit the Petitioner or deprive the itself is not a sufficient ground to nonsuit the Petitioner or deprive the Petitioner of an opportunity of hearing on the merits of the matter. If, Petitioner of an opportunity of hearing on the merits of the matter.

If, the lapse does not relate to any malafides and Petitioner has not the lapse does not relate to any malafides and Petitioner has not obtained any undue advantage of the situation, the Courts and the obtained any undue advantage of the situation, the Courts and the authorities are expected to construe such matters with a degree of authorities are expected to construe such matters with a degree of liberality. This is more so, when the delay was also only 30 days, which, liberality. This is more so, when the delay was also only 30 days, which, incidentally, was the maximum condonable period under Section incidentally, was the maximum condonable period under Section 128(1)-proviso.

128(1)-proviso.

15.

Therefore, subject to the Petitioner consistent with his Therefore, subject to the Petitioner consistent with his statement paying an amount of Rs.1,00,000/- to the Government K.E.M statement paying an amount of Rs.1,00,000/- to the Government K.E.M Hospital, Parel and further Rs.1,00,000/- to the Tata Memorial Hospital, Hospital, Parel and further Rs.

1,00,000/- to the Tata Memorial Hospital, Parel within four weeks of the date of uploading of this order and filing Parel within four weeks of the date of uploading of this order and filing a compliance report along with a receipt in this Court and also before a compliance report along with a receipt in this Court and also before the Appellate Authority, the delay shall stand condoned and the the Appellate Authority, the delay shall stand condoned and the impugned order shall stand set aside. The Appellate Authority shall then impugned order shall stand set aside. The Appellate Authority shall then hear the Petitioner's appeal on merits and dispose of the same in hear the Petitioner's appeal on merits and dispose of the same in accordance with law.

accordance with law.

1 1998 7 SCC 123 1998 7 SCC 123

Sayyed 17-WP.1364.2025.docx 16.

The account details of the K.E.M. Hospital and Tata Memorial The account details of the K.E.M. Hospital and Tata Memorial Hospital are as under :- Hospital are as under :- Bank Account of Hospital :- Poor Box Charity Fund, K.E.M. Hospital, Mumbai Bank Account Number of Hospital :- 99350100000877 (S.B.) Bank and Branch :- Bank of Baroda, Parel Branch Address. Tel. No. Fax. No. and e-mail of the concerned Bank :- Bank of Baroda, Madina Manzil, 88, Dr. Ambedkar Road, Mumbai - 400 012, Maharashtra, 022-24713820 dppare@bankofbaroda.com MICR Code Number :- 400012246 IFSC Number :- BARB0DBPARE(5th Letter is Zero) PAN :- AAATK3087D Type of Account :- Saving A/C Bank Name :- Central Bank of India Branch :- Tata Memorial Hospital Address, Telephone :- Dr. Ernest Borges Road, Parel Mumbai - 400 012. Tel. No. 022-24126487, Fax & No. Fax No.

No. 022-24126487 Bank Account No.

:- 1002449683 Account Type :- Current IFSC Code :- CBIN0284241 MICR Code :- 400016112 17.

However, if the Petitioner fails to make the above payments However, if the Petitioner fails to make the above payments within the period now prescribed, then this petition shall be deemed to within the period now prescribed, then this petition shall be deemed to have been dismissed with costs of Rs.10,000/- payable by the Petitioner have been dismissed with costs of Rs.10,000/- payable by the Petitioner to the Bar Council of Maharashtra and Goa.

to the Bar Council of Maharashtra and Goa.

Sayyed 17-WP.1364.2025.docx 18.

We record that this order has been made in exceptional We record that this order has been made in exceptional circumstances. Normally, even after setting aside the order, we would circumstances. Normally, even after setting aside the order, we would have only granted Petitioner an opportunity to file an application for have only granted Petitioner an opportunity to file an application for condonation of delay and then directed the Appellate Authority to condonation of delay and then directed the Appellate Authority to dispose of the same. However, in this case, considering that the delay dispose of the same. However, in this case, considering that the delay was 30 days and the explanation offered was sufficient, we have made was 30 days and the explanation offered was sufficient, we have made this order to expedite the proceedings and avoid duplication. this order to expedite the proceedings and avoid duplication. 19.

The Rule is made absolute in the above terms. No costs. The Rule is made absolute in the above terms. No costs. 20.

All concerned must act on an authenticated copy of this order. All concerned must act on an authenticated copy of this order. (Jitendra Jain, J.) (M. S. Sonak, J.) Signed by: Sayyed Saeed Ali Designation: PA To Honourable Judge Date: 31/07/2025 11:09:59