Delhi District Court
Unknown vs M/S Akai Rubber Industries on 14 August, 2012
IN THE COURT OF MS. SEEMA MAINI :
ADDITIONAL DISTRICT JUDGE-3 (NORTH) : DELHI
RCA No. : 61/11
Unique Case I.D. No. : 02401C0569932011
In re:
Oriental Bank of Commerce,
A Body corporate constituted under the
Banking Companies (Acquisition and
Transfer of Undertaking) Act, 10 of 1980
having its Head office at Harsha Bhawan,
E Blcok, Connaught Place, New Delhi and
having amongst other branches, and branch
office at Wazirpur, Delhi,
through Sh. Ramesh Kumar Sharma, Duly
constituted attorney of the appellant Bank
C-17, Community Centre, Ashok Vihar, Delhi. Appellant
Versus.
1. M/s Akai Rubber Industries
(Service through its sole proprietor)
A-31, Welcome Apartments, Sector-9,
Rohini, Delhi=110085
2. Sh. Rahul Kumar
S/o Sh. V.S. Yadav
(Sole Proprietor of Respondent no. 1)
A-31, Welcome Apartments, Sector-9,
Rohini, Delhi=110085.
3. Sh. Virender Singh Yadav,
S/o Sh. Raghupal Singh
BG-7, Shalimar Bagh,Delhi.
4. Sh. Krishan Veer Singh
S/o Late Sh. Rameshwar Singh
44/26, Village Badli, Delhi-110042.
5. Sh. Vijay Veer Singh
S/o Late Sh. Rameshwar Singh
44/26, Village Badli, Delhi-110042.
RCA No. 61/11 1 / 10
Also At : C/o Vijay Gas Agency
Village & PO Badli, Delhi-110042.
6. Sh. Ram Veer Singh
S/o Late Sh. Rameshwar Singh
44/26, Village Badli, Delhi-110042.
7. Sh. Rajesh
S/o Late Sh. Rameshwar Singh
44/26, Village Badli, Delhi-110042.
8. Smt. Vidhya Vati
W/o Late Sh. Rameshwar Singh
44/26, Village Badli, Delhi-110042. Respondents.
Date of filing of appeal : 08.12.2011
Date of pronouncement of order 14.08.2012
APPEARANCE:
Sh. R.L. Goel, Counsel for the appellant.
Sh.Sukhmeet Singh, Counsel for the respondents.
O R D E R :-
1. Vide this order, I shall dispose off an application u/o XLI Rule 3 A CPC dated 08.12.2011 r/w section 5 Limitation Act and section 151 CPC, for condonation of delay in filing the appeal.
2. The brief facts relevant for the disposal of the application are that the appellant / plaintiff Oriental Bank of Commerce (herein after referred to as the plaintiff) filed a suit for recovery of Rs. 2,03,957/- against the above named respondents / defendants (herein after referred to as the defendants), which was duly contested by the defendants and after the evidence was adduced by the parties and final arguments were extended, the suit was dismissed by the Ld. Trial Court vide impugned judgment / decree dated 22.09.2011. Aggrieved by the said judgment / decree, the RCA No. 61/11 1 / 10 plaintiff has preferred the appeal on 09.12.2011, alongwith which the instant application u/o XLI Rule 3 A CPC r/w section 5 Limitation Act, has been moved, seeking condonation of delay in filing of the appeal.
3. In the application in question, it is stated that the plaintiff's suit was dealt with, before the Ld. Trial Court, by Sh. Yatindra Sharma, advocate but the said advocate did not inform the plaintiff bank about the proceedings of the trial court, well in time but rather kept the plaintiff in dark, due to which there was a delay in applying for the certified copy of the judgment / decree. It is stated that the officials of the plaintiff bank pursued the matter constantly with the aforesaid advocate, who then applied for the certified copy of the judgment / decree on 01.11.2011, and obtained the same on 09.11.2011. However, the advocate informed the plaintiff bank about the receipt of the certified copy of the judgment / decree and handed over the office copy of the trial court file to the plaintiff bank on 02.12.2011. It is stated that the delay in filing of the present appeal is only due to the negligence, mistake, misguiding and laxity on the part of the erstwhile counsel and as such, it is a sufficient ground for not filing of the present appeal, within the prescribed period of limitation. It is prayed that the application be allowed and that the appeal be adjudicated upon merits.
4. No formal reply to the application was filed on behalf of the respondent.
5. I have heard Sh. R.L. Goel, counsel for the appellant / plaintiff and Sh. Sukhmeet Singh, counsel for the respondent, perused the record and have also gone through the relevant provisions of law.
6. Before proceeding further, it would not be out of place to reproduce RCA No. 61/11 1 / 10 the relevant provisions of law, as under :
Section 5 of the Limitation Act :-
"5. Extension of prescribed period in certain cases :- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
Order XLI Rule 3 A :-
"3 A. Application for condonation of delay.-(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
(2)....
(3)...
7. From the bare reading of the aforementioned provisions of law, it is clear that the key words are that the appellant should be able to show 'sufficient cause', which was instrumental in causing the delay in filing of the appeal. The prescribed period for filing of the appeal against the judgment / order, is 30 days. The impugned judgment / decree was pronounced on 22.09.2011 and therefore the limitation for filing of the appeal expired on 21.10.2011. The appellant / plaintiff, admittedly applied for the certified copy of the judgment / decree only on 01.11.2011 i.e RCA No. 61/11 1 / 10 nearly 10 days after the lapse of the limitation period, for filing of the appeal. The entire burden and blame has been shifted upon the erstwhile counsel Sh. Yatindra Sharma but the appellant / plaintiff has not brought on record any correspondence, which the appellant / plaintiff bank may have had with the counsel during the said period, which would be reflective about the ignorance of the advocate about the fate of the case.
8. The appellant is a body corporate / a bank, which is not a new litigant in the courts, but rather Oriental Bank of Commerce (OBC), is a well known financial institution, whose litigations can be found in abundance in the courts. The plaintiff bank has a separate law department and a penal of lawyers, working for it and therefore being a party in multifarious litigations, is not just well conversant with the law of limitation but also that after the pronouncement of the judgment, the certified copy is to be applied for immediately and appeal is to be filed thereafter promptly. The plaintiff was evasive or rather cryptic in putting forth the manner in which the erstwhile counsel was allegedly lax and negligent. The plaintiff has not mentioned emphatically as to when the plaintiff bank came to know about the dismissal of the suit. It is to be noted that in para no. 2 of the application in hand, it has been categorically mentioned that the 'officials of the appellant bank pursued the matter constantly with the aforesaid advocate, who applied the certified copy on 01.11.11.', thereby making it clear that the plaintiff bank came into knowledge of the dismissal of the suit well before 01.11.2011. If the counsel was not moving the application for procuring the certified copy of the judgment / decree, the plaintiff bank could very well have authorized any other advocate, on its panel, to move the application for obtaining the certified copy, but the plaintiff bank failed to do so.
9. Even thereafter, after the certified copy had been obtained on RCA No. 61/11 1 / 10 09.11.2011, this must surely have been in the knowledge of the plaintiff bank or its officials, who were pursuing the matter, but the appeal was yet filed by the counsel for the plaintiff bank only on 08.12.2011. On one hand, plaintiff has accused the erstwhile counsel Sh. Yatindra Sharma, of being negligent and lax, in as much as he did not keep the plaintiff informed about the proceedings despite constant pursuit. Therefore once the certified copy was applied for under the constant pressure of the officials of the plaintiff and the same was obtained on 09.11.2011, it does not seem probable that the official of the plaintiff bank would again have turned a blind eye and waited only for the so called 'negligent and lax counsel' to come and handover the certified copy of the judgment / decree to the plaintiff bank. Therefore, even if the alleged slackness of the counsel is accepted, in the initial stage, till the certified copy was applied for, the representation in the second para of the application becomes improbable.
10. If the erstwhile counsel Sh. Yatindra Sharma had already been lax and negligent in pursuing the case, it is not possible that post procurement of the certified copy of the judgment / decree also, the plaintiff would have relied only upon the erstwhile counsel to handover the certified copy and preparation of the appeal.
11. The Hon'ble High Court in Krishna Continental Ltd. and Sh. R.D. Bhanot Vs. Sh. Balkrishan Sharma, FAO Nos. 129-130/2005 and CM No. 6836/2005, decided on 08.08.2007, has not condoned the delay which was sought only on the ground that there was a mistake on the part of the court and cited and relied upon Mata Din V. A. Narayan MANU/SC/0621/1969 : [1970] 2SCR90, wherein it was held that the law is settled that mistake of Counsel may in certain circumstance be taken into account in condoning the delay although there is no general RCA No. 61/11 1 / 10 proposition that mistake of Counsel by itself is always bona fide or ws merely devise to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.
12. The Hon'ble High Court in the afore cited case did not condone the delay u/s 5 Limitation Act, where the burden had been shifted on the advocate, especially when no action was ever taken by the litigant concerned against the advocate concerned. In the case in hand also, no action has been stated to have been taken against the said advocate Sh. Yatindra Sharma, by the plaintiff bank, either by the removal of the said advocate from the panel of the plaintiff bank or by making any complaint against the said bank in the Bar Council. Therefore, in the case in hand, I am of the opinion that the cryptic and unsubstantiated allegations, which have been made by the plaintiff bank against the counsel Sh. Yatindra Sharma, do not suffice to make out a 'sufficient cause' for delay in filing of the appeal. Rather the delay of 30 days in filing of appeal, even after the receipt of certified copy, is only on the part of the plaintiff bank.
13. The scope of section 5 of the Limitation Act has been discussed and interpreted in catina of judgments of the Hon'ble High Court and Hon'ble Apex Court. The scope has been very aptly and lucidly discussed by the Hon'ble High Court in South India Shipping & Export Co. Vs. Tribal Cooperative Marketing Development Federation of India Ltd. in CM No. 15337/2010 (delay) & FAO(OS) No. 537/2010, decided on 20.12.2010, wherein their lordships have observed that :
"The courts normally do not throw away the meritorious lis on hyper-technical grounds. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy RCA No. 61/11 1 / 10 the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit."
It has further been observed that :
"Principles enunciated for condonation of delay are well settled. Expression 'sufficient cause' should be given liberal interpretation so as to advance substantial justice between the parties. (Balwant Singh Vs. Jagdish Singh (2010) 8 SCC 685; State of Karnataka Vs. Y. Moideen Kunhi (Dead) By LRs and Others (2009) 13 SCC 192; Ram Nath Sao Vs. Gobardhan Sao (2002) 3 SCC 195; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123; G. Ramegowda, Major and Others Vs. Special Land Acquisition Officer, Bangalore and Basavalingappa Vs. Special Land Acquisition Officer, Bangalore (1988) 2 SCC
142). It is not the length of delay which is material for condonation of delay in filing an appeal but the acceptability of the explanation. There may be cases where a few months' delay may not be condoned as an applicant has no reasonable explanation to offer for the same,yet there are cases where delay of several years has been condoned.
....
"The law that each day's delay must be explained has mellowed down yet it has to be shown by the applicant that there was neither any gross negligence nor any inaction, nor want of bonafides."
16. Reverting back to the case in hand and guided by the aforesaid dictum of the Hon'ble High Court, it is quite apparent that the plaintiff / appellant has not explained the delay day by day, which was caused in filing of the appeal, but has only casually and formally taken up the plea of RCA No. 61/11 1 / 10 negligence and lack of due diligence on the part of its counsel before the Ld. Trial Court, which does not inspire any confidence.
17. Ld. Counsel for the appellant / plaintiff has cited AIR 1987 SUPREME COURT 1353, Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, wherein the Hon'ble Apex Court has stated that liberal approach may be adopted by the Courts while dealing with an application u/s 5 Limitation Act. However, if the said judgment of the Hon'ble Apex Court is scrutinized and read as a whole, it is seen that the Hon'ble Apex Court promotes a liberal view, while construing 'every day's delay must be explained'. This doctrine must be applied in a rational common sense pragmatic manner. All the courts definitely abide by the said dictum of the Hon'ble Apex Court and adopt a rational common sense while construing and scrutinizing the delay, which has been explained day by day.
18. However, in the case in hand, no attempt has actually been made by the plaintiff bank to explain the delay in a rational manner. No doubt, the delay which has to be explained day by day, is not being construed by this court, that the delay caused on 10.11.2011, 11.11.2011, 12.11.2011 ..... .... 07.12.2011, which are the relevant dates and days in the instant case, is being called for. However, the plaintiff is definitely required to give an explanation in a reasonable manner, as to what the plaintiff bank was doing from 09.11.2011 to 07.12.2011, when it actually, though allegedly, got the certified copy in its hand, on which date, which official went to the court and met the counsel and what was the response, are the facts, which have not been thrown any light upon. Every statement and every allegation has been made in a perfunctory manner, without bothering to explain its implications or the diligence and the sincere persuit by the plaintiff. Therefore, even after taking a liberal RCA No. 61/11 1 / 10 approach, I find that the appellant / plaintiff has failed to explain the delay, which was caused, and the ground, of the mistake of the counsel of the plaintiff is only a guise to shield the slackness, laxity, negligence and lacking of due diligence on the part of the plaintiff bank in pursuing the matter and filing of the instant appeal.
10. Accordingly, I find no merit in the application u/o XLI Rule 3 A CPC r/w section 5 of the Limitation Act, for condonation of delay in filing of the appeal, which is therefore dismissed. The appeal bearing RCA No. 61/11 titled Oriental Bank of Commerce Vs. Akai Rubber Industries & Ors, which has been filed belatedly, after the lapse of the limitation period, therefore also fails and is dismissed. Parties are, however, left to bear their own costs.
A copy of this order be sent to the Ld. Trial Court alongwith the Trial Court Record. A copy of the order be placed in the appeal file, which be consigned to Record Room.
Announced in open Court (SEEMA MAINI) today i.e. on 14.08.2012 ADJ-03(North)Delhi RCA No. 61/11 1 / 10 RCA No. 61/11 14.08.2012 Present : None for the parties.
Vide my separate order announced in the open court, the application u/o XLI Rule 3 A CPC r/w section 5 of the Limitation Act moved by the appellant / plaintiff, for condonation of delay in filing of the appeal, is dismissed. And accordingly, the appeal bearing RCA No. 61/11 titled Oriental Bank of Commerce Vs. Akai Rubber Industries & Ors, which has been filed belatedly, after the lapse of the limitation period, therefore also fails and is dismissed. Parties are, however, left to bear their own costs.
A copy of this order be sent to the Ld. Trial Court alongwith the Trial Court Record. A copy of the order be placed in the appeal file, which be consigned to Record Room.
(SEEMA MAINI) ADJ-03(North)Delhi RCA No. 61/11 1 / 10