Law:

Section:

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)----------S.21---Civil Procedure Code (V of 1908), O.XLI, R.19---Appeal, restoration of---Sufficient cause---Pre-occupation of counsel before other Court-Non-filing of affidavit of counsel---Effect---Appeal against and decree passed by Banking Court, was dismissed on account of non-prosecution---Application for restoration of appeal was filed---Applicant did not specifically plead as to before which Court, his counsel was busy and at what point of time---Even counsel for applicant did not furnish his affidavit and appellant felt contended only by filing his affidavit in routine---Effect---Affidavit of applicant was of no avail to him, as he could not depose about alleged engagements of his counsel before other Benches of High Court and before Supreme Court, especially when applicant had stated in the application that he could not be informed by his counsel belonging to outside city and for such reason case remained unattended by him---If such statement of applicant be taken as true, then his affidavit appeared to be false, as he could not depose about alleged pre-occupation of his counsel before any of the Courts as he was not in knowledge of fixation of the appeal---Applicant along with the application, had filed a photocopy of single page of a diary statedly belonging to his counsel; it was not discernible from that Page whether the diary, in fact, belonged to his counsel---Even otherwise in absence of daily cause list and affidavit of counsel, such photocopy of diary could not be relied upon, more importantly, when valuable right had accrued favouring the other Ply---Applicant failed to even prima facie prove as to whether his counsel was busy before other Benches of High Court and at what point of time---All such details were lacking in the application and affidavit filed by applicant---No case was made out by applicant warranting re-admission of appeal--- High Court thus declined to exercise discretion in his favour--Application was dismissed in circumstances. (b) Civil Procedure Code (V of 1908)--- ----O.XLI, R.17---Prosecution of appeal---Duty of appellant---Mere…

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