Delhi District Court
M/S. Intelesoft Technologies Pvt. Ltd vs Ms. Sheena Gujral on 4 August, 2008
Page 1 of 16
IN THE COURT OF SH SUNIL KR AGGARWAL
ADDL DISTRICT JUDGE: DELHI
RCA No. 08/08
M/s. Intelesoft Technologies Pvt. Ltd.
A-2/78, Safdarjung Enclave,
New Delhi ..... Appellant
Versus
Ms. Sheena Gujral
D/o. Late Col. R S Gujral
R/o. 709, Sector -29
Noida -201 303
Uttar Pradesh ..... Respondent
Appeal presented on 24.03.08
JUDGMENT
1. This is to dispose off an appeal filed by the Appellant / Defendant against decree dated 12.02.07 whereby application of the Defendant seeking leave to contest the suit was dismissed as time barred on dismissal of condonation application and the suit was decreed in favour of the Plaintiff and order 16.02.08 whereby application of Defendant U/s. 151 CPC for setting aside the decree was dismissed.
2. The relevant facts in brief are that the Respondent / Plaintiff had filed suit for recovery of Rs. 1,02,218/- with Page 2 of 16 interest and costs against the Defendant U/o. 37 CPC. The Defendant entered appearance within time after service of summons U/o. 37 Rule 2 CPC in September, 2005. Summons for judgment were served upon Defendant on 08.06.06 at the notified address of its Counsel. The application for leave to defend along with application for condonation of delay were filed on 07.07.06. Ld. Trial Court rejected the condonation application and consequently dismissed the leave application of Defendant and decreed the suit U/o. 37 Rule 3 (6) (a) CPC on 12.02.07. The Defendant filed an application U/o. 37 Rule 4 CPC against the decree on 20.03.07 and subsequently an application U/s. 151 CPC on 14.09.07. Vide order dated 16.02.08 Ld. Trial Court dismissed the latter application of Defendant and confirmed the decree dated 12.02.07.
3 Aggrieved by the decree and order this appeal has been preferred on the grounds that Ld. Trial Court adopted a pedantic approach in rejecting the application therefore, impugned decree and order are bad in law. The Court should have accepted the explanation given by Ld. Counsel for Defendant with his affidavit and the period of Page 3 of 16 summer vacation should not have been counted while computing the limitation for filing application for leave to defend. It did not appreciate that Plaintiff had taken 8 months in getting summons for judgment issued to the Defendant which were served during summer vacation. Even then there was delay only of 7 days for which sufficient cause had been shown. On these grounds and placing reliance upon judgment of Hon'ble Supreme Court of India Defendant has urged for setting aside the impugned decree and order.
4 In reply to the grounds of appeal, the Plaintiff has contended that the appeal has been filed only to exhaust the Plaintiff psychologically and financially by recklessly infusing funds in luxury litigation. The appeal therefore, is liable to be dismissed with exemplary costs. It has been contended that the Defendant has been filing one after the other application without authorization in favour of the signatory just to avoid paying legitimate dues of Plaintiff, its ex- employee. The address of Defendant and that of its Counsel is identical therefore, it cannot be termed that Defendant is not served with summons for judgment. Having filed the Page 4 of 16 application seeking leave to defend at leisure on 07.07.08 instead of 03.07.06 when the Court had reopened after summer vacation. The Defendant displayed gross negligence and therefore, the indulgence of Court is not called for. In rest of the paras the Plaintiff has refuted the grounds of appeal and supported the impugned decree and order. 5 Rejoinder is also a formality of reiterating the grounds of appeal and controverting those of reply. 6 Along with the appeal an application U/s. 5 of Limitation Act read with section 151 of CPC has been filed for condonation of delay in presenting appeal, if any. It has been stated that subsequent to the order and decree dated 12.02.07 the Defendant was bonafidely pursuing remedy U/o. 37 Rule 4 CPC and had also filed an application U/s. 151 CPC for recalling the decree which was disposed off on 16.02.08. The appeal thereafter has been filed within the period of limitation from the date of confirmation of decree. This application however has been filed by way of abundantcaution as the delay, if any, in filing this appeal was neither intentional nor deliberate.
Page 5 of 167 I have heard Sh. Adhip Iyer Advocate Ld. Counsel for Appellant / Defendant, Sh. Gaurav Kumar Singh Advocate Ld. Counsel for Respondent / Plaintiff and carefully perused the Trial Court record.
8 Although the Ld. Trial Court had heard arguments on applications U/o. 37 Rule 4 CPC and another U/s. 151 CPC of the Defendant on 14.02.08 yet only the latter application was decided on 16.02.08. It was held in AIR 1953 SC 23 that an order U/s. 151 CPC simpliciter is not appealable .
9. Technically application U/o. 37 Rule 4 CPC is still to be disposed off yet the relief in the two applications being almost identical, it has to be perceived that vide the impugned order both the applications were dismissed by the Ld. Trial Court. No appeal against an order on application U/s. 37 Rule 4 CPC lies as has been laid down in AIR 1965 SC 1144 and AIR 1988 Pun. & Har. 202.
10 The appeal so far as order dated 16.02.08 is concerned, is not maintainable in view of the aforegoing Page 6 of 16 reasons.
11 Let us now examine the position of condonation application in respect of order dated 12.02.07. 12 The only ground of seeking condonation is that the Defendant had been bonafidely pursuing lawful remedy U/o. 37 Rule 4 CPC before Ld. Trial Court and therefore, did not file appeal against decree dated 12.02.07 within time and thus intended to take benefit of section 14 of Limitation Act. Although the plain language of said section denotes that it cannot be invoked in the matter of appeal yet it has been held in AIR 1962 SC 361 that section 14 of Limitation Act does not, in terms, apply to appeals but the circumstances contemplated in the section may be ordinarily taken to constitute a '' Sufficient cause'' within the meaning of section 5 thereof. The principle of law was followed in AIR 1974 Punjab 229.
13 As the certified copies of two orders reveal that the Defendant had applied for certified copy of decree sheet on 20.02.07 and it was ready for delivery on 26.02.07. Order dated 16.02.08 similarly was applied for on 20.02.08 Page 7 of 16 and the copy was ready on 23.02.08. The Defendant thus had filed application U/o. 37 Rule 4 CPC with delay of two days after availing benefit of section 12 of the Limitation Act. It has preferred this appeal with another delay of three days after giving benefit of section 12 of Limitation Act from the date of disposal of applications on 16.02.08 14 The condonation application has not been made a serious bone of contention by Ld. Counsel for the Plaintiff except contending that it has not been filed by a duly authorized person which also holds good for the appeal. The appeal was not accompanied with any authorization documents. The one filed on 17.07.08 does not bear the address of its registered office as per the mandatory legal requirement. Even in the board resolution dated 07.03.08 the number of appeal has been interpolated as is apparent from the extract produced on the record of appeal. 15 Technically Ld. Counsel for Plaintiff has scored a point by raising this contention but it is of little consequence so far as the condonation application is concerned. Sh. Iyer contended that he had mentioned the appeal number in Page 8 of 16 the extract in his zeal to ensure that the document is placed in the right file without realizing the adverse effect. Since there was really no need to mention the appeal number in the authorization resolution in favour of signatory to appeal, the addition on the extract of resolution is ignored in the hope that Ld. Counsel for Plaintiff would be vigilant henceforth.
16 Detailed arguments on condonation application in the context of decree dated 12.02.07 were not addressed, the dates when the Defendant was asked to collect certified copies by the copying agency are not available to assess the actual delay. It would be fair to observe that both the proceedings i.e order 37 Rule 4 CPC and this appeal were initiated by the Defendant after exhausting the entire limitation period or with a small delay. The same is condoned in the facts and circumstances of the case on payment of Rs. 1,500/- as cost.
17 We are now faced with yet another condonation application that the Ld. Trial Court had dismissed on 12.02.07 and consequently the suit was decreed in favour of the Page 9 of 16 Plaintiff. It has been stated that the office of Ld. Counsel for Defendant was closed during summer vacations as he had gone out of station. The summons were received by Sh. Usuf Ahmed, Advocate, an associate of Ld. Counsel for Defendant, on 08.06.06 who had come to collect his articles from the office for going to his native place. Ld. Counsel for Defendant learnt about the receipt of summons on return from vacations on 30.06.06. He could prepare the leave application only thereafter so as to file it with condonation application on 07.07.06. According to the Defendant the affidavit of Counsel should have been acknowledged by the Ld. Trial Court in condoning the delay. They were no intention of Defendant to cause delay in disposal of the case. It was rather the Plaintiff who had taken about 8 months in applying for issuance of summons for judgment.
18 Ld. Counsel for Plaintiff has contended that the Defendant has been changing its version at every stage. The Counsel had not filed affidavit along with applications for leave to defend and condonation of delay. The insistence of Defendant that the summons for judgment were effectively served on 30.06.06, to synchronize with the return of its Page 10 of 16 Counsel could not have been accepted by the Ld. Trial Court and it reflects the underlying malafide intention of the Defendant. It is argued that there was no deliberate delay on the part of Plaintiff in getting the summons for judgment issued.
19 Case law on condonation of delays is tilted towards a liberal approach. It was held in Collector, Land Acquisition, Anantnag Vs Katiji , (1987) 2 SCC 107 that the legislature has conferred power to condon delay by enacting section 5 of Indian Limitation Act in order to enable the courts to do substantial justice to parties by disposing off matters on ''merits''. The expression ''Sufficient cause'' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice- that being the life-purpose for the existence of the institution of Courts. A liberal approach is adopted on Principle as it is realized that:
1 Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being Page 11 of 16 defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3 ''Every day's delay must be explained'' does not mean that a pedantic approach should be made. Why not every hour's delay, even second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4 When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5 There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
20 In N Balakrishanan Vs M Krishnamurthy, (1998) 7 SCC 123 it was inter-alia observed that Rules of Limitation are not meant to destroy the rights of parties . They are meant to see that parties do not resort to dilatory tactics , but seek their remedy promptly. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant Page 12 of 16 concerned. That alone is not enough to turn down his plea and to shut the door against him. There is no presumption that delay in approaching the Court is always deliberate because the Court knows that refusal to condon delay would result in foreclosing a suitor from putting forth is cause. The law thus has been laid in the words It is axiomatic that 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. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court.
21 The ratio has been reiterated in State of Nagaland Vs Lipok AO , (2005) 3 SCC 752 and adopted in Motilal Banarsi Dass Publishers Pvt. Ltd Vs Standard Chartered Bank IA No. 461/06, 462/06 and 7884/06 in CS (OS) No. 1429/2005 decided by the Hon'ble Delhi High Court on 08.12.06 .
Ld. Counsel for Defendant has stressed upon Bush Page 13 of 16 Boake Allen (India) Ltd (M/s.) Vs M/s. Mahtajee And Company & Others 2006 I AD (Delhi ) 396 to contend that the explanation of the litigant for being out of station at the relevant time was accepted for condoning the delay in filing leave application. Reference to the judgment in Bankay Behari G Agrawal Vs M/s. Bhagwanji Maghiji , 2001 Vol. 103 (1) Bom. L. R. 823 is made to say that where the Plaintiff had failed to take out summons for judgment within six months the suit should have been considered for dismissal. 22 True that Ld. Counsel for Defendant had not filed his own affidavit along with application dated 07.07.06 seeking condonation of delay but had filed the same in support of application under order 37 Rule 4 CPC . Sh. Usuf Ahmed Advocate had also filed his affidavit in support thereof.
23 The plea of giving benefit to the Defendant for delay on the part of Plaintiff in taking out summons for judgment is superfluous as it has been held in the judgment relied upon by the Defendant by Hon'ble Bombay High Court that delay on the part of Plaintiff does not automatically Page 14 of 16 entitle the Defendant to unconditional leave to defend the suit.
24 Having taken the onus of receiving summons for judgment on behalf of the Defendant, Ld. Counsel was expected to be cautious and more vigilant in the time bound matter. Since he was seeking condonation on his personal ground, an affidavit along with the documents showing his outstation visit should have accompanied the application. 25 In Sanjay Kumar Vs Sitarani Khanna, 2007 (98) DRJ 173, it was held that whether on account of negligence on the part of the Counsel '' sufficient cause '' is made out or not, will depend on the facts and circumstances of each case. A party who has selected his Advocate, briefed him and paid his fee can remain confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and accepted of him to look after his case, should not be made to suffer for inaction, deliberate omission or misdemeanor of his Counsel and a party cannot be allowed to suffer for latches and lapses on the part of lawyers . The rules of limitation are not meant to destroy the Page 15 of 16 rights of the parties and are to be used to see that the parties do not resort to dilatory tactics and the object of providing a legal remedy is to repair the damage caused by reason of legal injury.
26 When the Defendant had furnished address of its Advocate, for service of summons for judgment, it hardly matters that it is also existing in the same building/address. In fact in the array of parties the address of Defendant is C/o Aggarwal Jaitley & Co. Plaintiff then cannot stress that Defendant has knowledge of the service of summons as it is existing in the same premises.
27 I am in agreement with the appellant that instead of taking a pedantic approach, Ld. trial Court should have adopted a liberal/softer approach while considering the condonation application as there was delay of just five days in filing application for leave to defend. Moreover the trial Court did not consider whether the claim of Plaintiff entirely falls within the period of limitation but went on to decree the suit in its entirety as a sequel of dismissal of condonation application.
Page 16 of 1628 Taking a balanced approach in view of the case law cited above and facts and circumstances of the case, judgment and decree dated 12.02.07 is set aside subject to the Defendant depositing a sum of Rs. 60,000/- before Ld. Trial Court in the shape of FDR initially valid for a period of one year, within one month from today. The appeal is allowed accordingly. Parties shall appear before Ld. trial Court on 27.08.08 for payment of cost and hearing on the application of the Defendant for leave to defend. Parties are left to bear their costs.
29 Trial Court record be returned along with a copy of this order. Appeal file be consigned to record-room .
ANNOUNCED IN THE OPEN (SUNIL KR AGGARWAL)
COURT ON DATED: 04.08.08 ADDL. DISTRICT JUDGE
DELHI
RCA No. 08/08
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04.08.08
Present: Ld. Counsels for the parties.
The appeal is allowed. Vide separate judgment. Parties shall appear before Ld. trial Court on 27.08.08 for payment of cost by Defendant and hearing on the application of the Defendant for leave to defend. Parties are left to bear their costs.
Appeal file be consigned to record-room .
Sunil Kr Aggarwal ADJ/Delhi 04.08.08