Kerala High Court
Sebastian Chokkatu vs Industrial Development Bank Of India ... on 14 March, 2006
Equivalent citations: [2006]132COMPCAS539(KER), AIR 2006 (NOC) 745 (KER.)
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT V.K. Bali, C.J.
1. By this common judgment we dispose of three connected writ appeals bearing Nos. 1564 of 2004, 1672 of 2004 and 1674 of 2004. Learned counsel appearing for the parties also suggest likewise.
2. These writ appeals need to be disposed of while keeping in mind two settled judicial norms, namely that as far as possible a citizen is entitled to have a decision of his cause on the merits, and that unless his conduct may be contumacious and the grounds pleaded be wholly insufficient or patently false, the delay in bringing about a cause should normally be condoned.
3. The appellant, petitioner in the original lis, was a guarantor of the loan availed of by a company from the Industrial Development Bank of India. The company was later liquidated and its entire assets were taken over by the official liquidator. The first respondent-bank however initiated proceedings for realisation of the amount of Rs. 5,27,86,994.50 together with interest thereon by filing an application before the Debts Recovery Tribunal, Ernakulam. The matter was contested by the appellant on various grounds inclusive of that the transactions were not commercial in nature and therefore the rate of interest claimed by the first respondent was exorbitant. The matter on contest, however, resulted in an order in favour of the first respondent-bank and against the appellant. Aggrieved, the appellant filed an appeal before the Debts Recovery Appellate Tribunal. Inasmuch as the same was barred by limitation, in one case by a period of 570 days, another 190 days and yet another 144 days, he filed an application for condonation of delay. Accompanying the application aforesaid an affidavit was filed by the appellant, paragraph 2 whereof, reads as follows:
The appellant was residing in U.A.E. at the time of passing the order in O.A. In connection with his business he had to travel various places and so he could not contact his counsel in time and make necessary arrangements for filing the O.A. There was delay on the part of the advocate for the appellant in the Tribunal to intimate the decision in time. The appellant was informed about the disposal of the O.A. only when he enquired about the matter on September 19, 2002. Immediately the appellant contacted the lawyer and made arrangements for filing the appeal. The delay in filing the appeal is not deliberate or wilful and is on account of the abovestated circumstances.
4. It is the admitted position that no counter to the application seeking condonation of delay was filed by the respondent-bank. The learned Debts Recovery Appellate Tribunal dismissed the application seeking condonation of delay, constraining the appellant to file writ petition in this Court which has been dismissed by the learned single judge vide orders dated June 8, 2004. It is against these two orders that the present writ appeals have been filed.
5. It is not in dispute that the appellant is a non-resident Indian. The averment made in the affidavit as mentioned above that at the time when the order was passed in O.A. he was not in the country also remained unrebutted. The sufficient reasons stated in the affidavit, for condonation of delay was thus, that the appellant was residing in U.A.E., at the time of passing the order in O.A., he was not in the country, in connection with his business he had to travel various places and so he could not contact his counsel in time, that there was a delay on the part of his lawyer appearing before the Tribunal to intimate the decision in time and that the appellant was informed about the disposal of the O.A. only when he enquired about the matter on September 19, 2002. On October 30, 2002 he has filed the appeal.
6. The admitted or rebutted facts as have been stated above, in our considered view, did make out a sufficient cause for condonation of delay. The hon'ble Supreme Court in Radha Krishna Rai v. Allahabad Bank [2000] 9 SCC 733 observed as follows:
On the facts, we are of the view that though the period of delay is unduly long, the circumstances are also very unusual. The petitioner has been a victim of misrepresentation of facts by his own advocate and was kept under the impression that the appeal is pending before the High Court whereas no appeal was in fact filed by the advocate. It cannot be said that the appellant has not been vigilant in prosecuting the appeal. The cause shown by the petitioner is sufficient to justify condoning the delay in filing the appeal.
7. Learned Counsel appearing for the respondent-bank however contends that if delay is caused in finalising the matters the very purpose of the Legislature in creating a different forum for settlement of the dues would be defeated and that the appellant was in any case making a complaint of higher rate of interest only by pleading that the transactions are not commercial in nature and therefore the rate of interest claimed is exorbitant, whereas from a perusal of the very transactions of loan it would appear that the transactions were commercial.
8. We are of the view that the defence projected by learned counsel for the respondent-bank on the points referred to above is not enough so as not to give at least one chance to the appellant for getting a decision in appeal on the merits, particularly when he was only a guarantor and is saddled with a liability for crores of rupees. It was not a case where the conduct of the appellant was contumacious or that he had filed an application seeking condonation of delay on totally a false plea. As mentioned above, it is admitted that the appellant is a non-resident Indian and as mentioned above, there is no rebuttal to the averments made by the appellant in the application seeking condonation of delay that he was not in India at the time of passing the order and his counsel did not inform him of the decision taken by the original court. The appellant has indeed, in our considered view, made out a case for condonation of delay. The grounds pleaded by him were sufficient and in our considered view the appeal should have been disposed of on the merits.
9. In view of the discussions as made above, we set aside the order dated April 30, 2003, passed by the Debts Recovery Appellate Tribunal, Chennai, as also the judgment passed by the learned single judge in W. P. (C) Nos. 39380, 39418 and 38548 of 2003 and allow these writ appeals. We remit the matter back to the Debts Recovery Appellate Tribunal, Chennai, for disposing of the appeals on the merits. We further order that the properties of the appellant shall remain under attachment and further that the appellant would not alienate the same by sale, mortgage, or in any other manner till such time the appeals are disposed of.