Ms Shoes East Limited Later Known As Tomorrowland Technologies Exports Limited Now Tommorrowland Limited vs Aashish And Co & Anr.

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15.10.2026
# CNR No. DLHC010086992022
+ FAO(OS) 16/2022
M/S. MS SHOES EAST LTD.
(Later known as Tomorrowland Technologies
Exports Limited
Now known as Tomorrowland Limited)
A company duly incorporated under
Indian Companies Act, 1956
Having its registered office at:
112A Ekta Enclave,
New Delhi-110087.
Acting Through its Chairman
And Managing Director
SH. PAVAN SACHDEVA. …. Appellant
Through: Mr. Pavan Sachdeva, Chairman-cum-
Managing Director of the appellant
with & Mr. Ishan Sachdeva.

versus

1. AASHISH & CO. & ORS. .... Respondent No.1

2. HARISH KANKARIA
Kankaria Bhawan
12 Kalathi Pillaistreet
ST
1 Floor, Sowcarpet
Chennai-600079.

ALSO AT:
45/1, Clemens Road
Purasalwakam, Vepery
Chennai-600007. .... Respondent No.2
Signature Not Verified
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Digitally Signed
By:ALKA BOBAL
Signing

Through: None.

CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE NISHA SAHAY SAXENA
J U D G M E N T (ORAL)


1. The present appeal under Section 10 of the Delhi High Court Act, 1966
1
assails the order dated 28.01.2022 passed by the learned Single Judge in
CS(OS) 2072/2012, whereby I.A. 1467/2022, preferred by respondent no.2
under Section 5 of the Limitation Act, 1963 seeking condonation of a delay
of “about 180 days” in filing I.A. 1465/2022 under Order IX Rule 13 read
2
with Section 151 of the Code of Civil Procedure, 1908 for setting aside the
ex-parte decree dated 25.11.2013 and the addendum dated 17.12.2014, came
to be allowed on the very first date of its listing, without notice to the
appellant/decree holder and without any reasons. The appellant’s Review
Petition No. 576/2025, directed against the order dated 15.10.2025 passed in
this appeal, along with CM APPL. 71924/2025, is also taken up and disposed
of by this judgment.
2. Briefly stated, the appellant, originally incorporated as “MS Shoes East
Limited” and now known as “Tommorrowland Limited”, had disputes with
respondent no.1, M/s Aashish & Co., arising out of an underwriting agreement
dated 10.01.1995. On a petition under Section 20 of the Arbitration Act, 1940,
this Court appointed an Arbitrator on 14.03.2007, who rendered an ex-parte
award dated 23.05.2012 against M/s Aashish & Co., late Mr. M.R. Kankaria

1
Impugned Order
2
CPC
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and his son, respondent no.2, Mr. Harish Kankaria (described therein as “Mr.
Harish Kumar, Partner, Aashish & Co.” ). The appellant then instituted
CS(OS) 2072/2012 under Sections 14 and 17 of the Arbitration Act, 1940.
The record of the suit reflects delivery of summons to respondent no.1 on
27.08.2012, delivery of the courier addressed to respondent no.2 on
13.04.2013, refusal of the courier addressed to Mr. M.R. Kankaria on
21.04.2013, and substituted service by publication on 05.09.2013. The award
was made a rule of the Court by judgment dated 25.11.2013 and, by the
addendum dated 17.12.2014, a decree was drawn for Rs. 22,24,964/- with
interest at 18% per annum from the date of the award.
3. The decree was put to execution in Ex.P. 198/2015. Counsel for the
judgment debtors appeared before the Executing Court on 04.09.2019, and
upon the death of Mr. M.R. Kankaria on 16.03.2018, respondent no.2 was
also brought on record as his legal representative on 30.10.2019. Respondent
no.2 thereafter filed objections and an affidavit of assets in the execution. It
was only in January 2022 that he filed I.A. 1465/2022 under Order IX Rule
13 CPC, I.A. 1466/2022 for stay of execution and I.A. 1467/2022 for
condonation of delay, pleading that he had no knowledge of the proceedings
until 17.08.2019, that certified copies were declined to him, and that the delay
was “about 180 days”, without disclosing the date from which, or the manner
in which, that period had been computed. On 28.01.2022, in the absence of
the decree holder, the learned Single Judge passed the following order:
“3. For the reasons mentioned in the application, the same is allowed
and the delay in filing I.A No.1465/2022 is condoned.

4. The application stands disposed of.

…
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6. Issue notice to the non-applicant/plaintiff/decree holder by all
permissible modes returnable before the Joint Registrar.
7. List before the Joint Registrar on the date already fixed i.e., 14th
March, 2022 for completion of service and pleadings in these
applications as well.”

4. Mr. Pavan Sachdeva, Chairman-cum-Managing Director of the
appellant, submits that the impugned order was passed without notice to the
decree holder, without affording it an opportunity to reply or to be heard, and
without a single reason, the only basis recorded being “for the reasons
mentioned in the application” . He submits that the delay was not 180 days
but over eight years (3102 days, as computed in the Review Petition), since
respondent no.2 had knowledge of the award and the suit from 2012–2013, as
borne out by the service reports, the refusal and the publication on record, and
was in any event represented in the execution from 04.09.2019. He contends
that the application offered no explanation for the delay, much less a day-to-
day explanation, that the plea of “several oral requests” for copies is wholly
unsubstantiated, and that the expiry of limitation had vested in the decree
holder a valuable right which could not be taken away behind its back. He
points out that every challenge laid by respondent no.2 in the execution has
been repelled up to the Supreme Court, and that the application under Order
IX Rule 13 CPC is merely a device to stall the satisfaction of a decree passed
in 2013.
5. In support, reliance is placed on Kumar etc. v. Karnataka Industrial
3
Co-operative Bank Ltd. & Anr. , wherein the Supreme Court observed as
follows:

3
2013 (II) AD (SC) 569
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“6. ...... It was the duty of the High Court to consider the reasons
assigned for the delay and thereafter come to the conclusion whether,
on the grounds shown, sufficient cause within the meaning of Section 5
of the Limitation Act has been made out. We have already taken note of
the contents of the condonation application filed on behalf of the bank
and it is our considered view that on the basis of the statements made
therein no satisfaction could have been reasonably reached that the
complainant Bank was prevented by sufficient cause from filing the
Revision Applications in time.”
4
6. Reliance is also placed on Adarsh Rani v. Chuni Lal , wherein it was
held:
“8. No doubt, this Court as also the Apex Court have not been strictly
viewing the procedural lapses and while advancing the cause of justice
small deviation from the procedure has normally been ignored. In this
case, however, the Court is of the view that it is not a case of procedural
deviation or lapse. In fact, it is a case of forgery and as such delay
cannot be condoned. Inasmuch as the application is based upon
incorrect and false assertions, the same is dismissed.”
7. Lastly, the appellant relies on Majji Sannemma @ Sanyasirao v.
5

Reddy Sridevi & Ors. , wherein the Supreme Court set aside an order
condoning a delay of 1011 days, holding that the High Court had not exercised
its discretion judiciously where, in the application, “no explanation much less
a sufficient or a satisfactory explanation had been offered” .
8. None has appeared on behalf of the respondents. The record shows that,
after being served and represented, the respondents sought time to file a reply
on 07.02.2023 and again on 30.10.2023, stated on 12.03.2024 that they did
not wish to file any reply, and thereafter sought adjournments on 05.08.2024,
16.07.2025 and 15.10.2025. They have not been present before us since, and
no submission has been advanced on their behalf. Given this history, we see

4
MANU/PH/1843/2001
5
MANU/SC/1269/2021 (Civil Appeal No. 7696 of 2021, decided on 16.12.2021)
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no reason to defer the matter any further and proceed to decide the appeal on
the basis of the record.
9. At the outset, the appeal is maintainable. An order condoning the delay
in seeking to set aside an ex-parte decree that had stood for over eight years
removes the bar of limitation accrued in favour of the decree holder and
reopens a concluded decree; it decides a valuable right and has the trappings
of a “ judgment ” within the meaning explained in Shah Babulal Khimji v.
6
Jayaben D. Kania . On merits, the limitation for an application under Order
IX Rule 13 CPC is thirty days under Article 123 of the Limitation Act, 1963,
reckoned, where summons was not duly served, from the date of knowledge
of the decree. Once that period expires, the decree holder acquires a vested
right to treat the decree as final. Section 5 permits the Court to admit a belated
application only where the applicant “satisfies the court” that he had
sufficient cause. The burden is on the applicant, and the discretion, though to
be exercised liberally in the cause of substantial justice, is a judicial discretion
which requires the Court to examine the bona fides of the explanation and to
weigh the right that has accrued to the other side by lapse of time, as reiterated
in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar
7 8
Academy and Basawaraj v. Special Land Acquisition Officer . A
satisfaction of that nature, reached behind the back of the very party whose
accrued right is being taken away, is no satisfaction in law; it offends the
elementary principle of audi alteram partem .

6
(1981) 4 SCC 8
7
(2013) 12 SCC 649
8
(2013) 14 SCC 81
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10. Tested on these principles, the impugned order cannot stand. The
learned Single Judge, by the same order, found it necessary to issue notice to
the decree holder on the application under Order IX Rule 13 CPC and on the
stay application, yet decided the threshold question of limitation, on which
the maintainability of those very applications depended, without notice. The
consequence is that the decree holder now stands precluded from raising the
bar of limitation in answer to I.A. 1465/2022. The prejudice is manifest, more
so when the question of delay turned on seriously disputed facts. The order is
equally vitiated for want of reasons. Recording reasons is an integral part of
the judicial process and the only assurance of application of mind, as
9
emphasised in Kranti Associates (P) Ltd. v. Masood Ahmed Khan . The
words “for the reasons mentioned in the application” neither identify the
period of delay nor return any finding of sufficient cause, particularly when
the application itself contained no computation None of this was undertaken.
11. The question that remains is whether this Court should itself decide the
application for condonation. In our view, it must be decided in the first
instance by the learned Single Judge, before whom the application under
Order IX Rule 13 CPC and the record of the suit are pending, and after the
decree holder has placed its version on record. A determination by us at this
stage on the period of delay or the sufficiency of cause would foreclose the
remedies of both sides. For the same reason, the prayer of the appellant for
dismissal of I.A. 1465/2022 cannot be entertained in this appeal.
12. Accordingly, the appeal is allowed. The impugned order dated
28.01.2022, insofar as it allows I.A. 1467/2022 and condones the delay in

9
(2010) 9 SCC 496
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filing I.A. 1465/2022, is set aside, and I.A. 1467/2022 is restored to its original
number before the learned Single Judge, to be decided afresh in accordance
with law after hearing the appellant/decree holder. The matter be listed before
the learned Single Judge on the date already fixed, and since the decree dates
back to 2013, the learned Single Judge is requested to decide I.A. 1467/2022
expeditiously. Nothing stated herein shall be construed as an expression of
opinion on the merits of the said applications, on which all contentions of the
parties are left open.
13. In view of the above, CM APPL. 10361/2022, Review Petition No.
576/2025 and CM APPL. 71924/2025 are disposed of as infructuous. As the
respondents have not been appearing, the Registry shall communicate a copy
of this judgment to them at their addresses on record and to their counsel on
record by all permissible modes, including electronic mode. There shall be no
order as to costs.

VIVEK CHAUDHARY, J


NISHA SAHAY SAXENA, J
OCTOBER 15, 2026
jd
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Digitally Signed
By:ALKA BOBAL
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