Delhi High Court
Tarlochan Singh And Ors. vs Union Bank Of India And Ors. on 11 December, 2012
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. No.11281/2012(by D-2 & D-3 u/Order IX Rule 7 CPC) and I.A. No.11283/2012(by D-2 & D-3 u/Section 5 of Limitation Act ) in CS(OS) 99/2004 Date of Decision: 11th December,2012 IN THE MATTER OF TARLOCHAN SINGH AND ORS. ..... Plaintiffs Through Mr.S.K.Dubey, Ms.Zeenat Masoodi, Ms.Bhagyashree Pati, and Mr.Malay Dwivedi, Advocates versus UNION BANK OF INDIA AND ORS. .... Defendants Through Mr.Madan Gera and Ms.Vriti Anand, Advocates for D-2 & D-3 CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J. (Oral)
1. The present applications have been filed by the applicants/defendants No.2 & 3, who are husband and wife, praying inter alia for setting aside the ex-parte order dated 8.9.2004 and for condonation of delay of 2360 days in filing the accompanying application, under Order IX Rule 7 of the Code of Civil Procedure (for short `CPC').
2. Vide order dated 8.9.2004, the defendants No.2 & 3 were proceeded against ex-parte and the plaintiffs were directed to file their ex-parte evidence by way of affidavits in a suit for declaration, for execution of the IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 1 of 12 sale deeds and for permanent injunction. Pertinently, the defendant No.1/Bank was also proceeded against ex-parte by the same order. Thereafter, the ex-parte evidence was concluded by the plaintiffs sometime in the year 2005 and the suit was ripe for final arguments.
3. The explanation offered by learned counsel for the defendants No.2 & 3 for seeking condonation of delay of 2360 days in filing the accompanying application, under Order IX Rule 7 CPC is that the applicants/defendants No.2 & 3 had engaged a counsel to defend their case and they had signed a vakalatnama in her favour, whereafter, she had assured them that she was following the case diligently and was appearing on all dates and that the present suit was pending consideration by the court. However the defendant No.3 was keeping indifferent health since the year 2000 and the defendant No.2 was also not in good health since the year 2003 and therefore, both of them were unable to follow up their case with their counsel and trusted her to diligently defend the same on their behalf.
4. It is averred in the present application that the applicants/defendants No.2 & 3 came to know from the defendant No.1/Bank that the bank and the plaintiffs had settled their interse dispute and the plaintiffs had moved a fresh application for passing of a decree in their favour and only thereupon did the defendants No.2 & 3 approach another Advocate and engaged him to verify the status of the present suit. The said Advocate, Mr.Ashutosh Dubey IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 2 of 12 had appeared in Court on 17.4.2012, inspected the file and informed the defendants No.2 & 3 that the plaintiffs had filed an application for passing a decree in their favour, in view of a settlement arrived at between them and the defendant No.1/bank. Defendants No.2 & 3 claimed that only at that stage did they come to know that their previously engaged counsel had neither appeared in Court and nor had she filed a written statement on their behalf. As a result, the present applications have been filed by them for seeking condonation of delay of 2360 days in filing the application under Order IX Rule 7 CPC and for setting aside the ex-parte order dated 8.9.2004.
5. Learned counsel for the applicants/defendants No.2 & 3 submits that the explanation offered hereinabove may be considered as sufficient ground for condoning the delay of 2360 days in filing the accompanying application under Order IX Rule 7 CPC and permitting the defendants No.2 & 3 to participate in the present proceedings.
6. The present applications are, however, vehemently opposed by learned counsel for the plaintiffs who states that the applications are not bonafide and the defendants No.2 & 3 are nothing short of fence sitters. He submits that the plaintiffs had instituted the present suit for declaration, mandatory injunction and specific performance for execution of Agreements to Sell dated 12.9.1994 and 13.9.1994, in December 2003. Thereafter, the defendants No.2 & 3 had appeared in person before the learned Joint IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 3 of 12 Registrar on 11.5.2004 and they were granted four weeks time to file their written statements and the suit was adjourned for 23.8.2004. However, the written statement was not filed by the defendants within the time granted. Instead, on 23.8.2004, a counsel by the name of Ms.Sumita Chaudhary had appeared on behalf of the aforesaid defendants and she had sought an adjournment to file the written statement. Upon perusing the record, the Joint Registrar observed that the defendants No.2 & 3 had put in their appearance on 11.5.2004 and the period of ninety days had expired ever since then. Similarly, it was noticed that the defendant No.1/bank was served with the summons on 8.6.2004 and a period of more than sixty days from the date of service of summons upon the bank had expired and none of the defendants had filed their written statements. As a result, the suit was placed before the Court for appropriate orders on 8.9.2004. On 8.9.2004, in view of the fact that none of the defendants had filed their written statements within the period prescribed or even during the extended period as stipulated in the CPC, they were proceeded against ex-parte and the plaintiffs were called upon to lead their ex-parte evidence by way of affidavits.
7. Learned counsel for the plaintiffs urges that the submission made by the applicants/defendants No.2 & 3 in the present applications, to the effect that they remained blissfully unaware of the status of the present IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 4 of 12 proceedings and had solely relied upon their counsel to pursue the case, is untenable and liable to be turned down for the reason that on a perusal of the records, it can be seen that the said defendants were constantly aware of the status of the present proceedings and their claim that they had filed a written statement, that was purportedly signed by them on 7.9.2004, is not borne out from the records.
8. Mr. Dubey further states that the applicants/defendants No.2 & 3 were regularly being represented at the hearings held before the Debt Recovery Tribunal, Delhi where the defendant No.1/Bank had instituted recovery proceedings against them and their company and the said proceedings had remained pending till as late as 3.7.2012. He submits that the defendants were represented by an Advocate throughout the aforesaid proceedings and on certain occasions, defendant No.2 had been personally appearing in the said proceedings. He therefore contends that it does not lie in the mouth of the defendants No.2 & 3 to claim that they were unaware of the pendency of the present proceedings as the plaintiffs were also participating in the recovery proceedings filed by defendant no. 1/Bank before the Debt Recovery Tribunal and they had apprised the said forum about the orders that were being passed in the present proceedings.
9. On merits, it is submitted by learned counsel for the plaintiffs that during the pendency of the present suit, the plaintiffs who are the bonafide IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 5 of 12 purchasers of the suit property from the defendants No.2 & 3, had paid them part sale consideration of `26,00,000/- by way of bank drafts in the year 1994 and the balance sum of `10,00,000/- was deposited by the plaintiffs directly with the defendant No.1/Bank pursuant to the order dated 21.3.2007, that was passed in the present proceedings. Thereafter, the plaintiffs had arrived at a "One Time Settlement" with the defendant No.1/Bank with whom the defendants No.2 & 3 had mortgaged the suit property behind their back, and paid a sum of `4,00,00,000/- to the bank. Vide order dated 17.4.2012 passed in IA No.6889/2012, an application that was jointly filed by the plaintiff and the defendant No.1/bank under Order XXIII Rule 3 CPC, on the basis of the settlement arrived between the parties pursuant to the aforesaid "One Time Settlement arrived at between them, the bank had deposited the title deeds of the suit property in this court. He submits that it is only at that stage that the defendants No.2 & 3 who were watching the entire proceedings from the sideline, decided to jump into the fray and filed the present misconceived applications for condonation of delay and for seeking recall of the aforesaid ex-parte order passed seven years and eight months ago and for grant of permission to participate in the suit proceedings.
10. It is further stated that the applicants cannot be permitted to urge that they had remained unaware of the pendency of the present proceedings, IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 6 of 12 particularly since they were regularly and actively appearing in the criminal proceedings that were initiated by the plaintiffs on the basis of a criminal complaint lodged against them. To substantiate the aforesaid submission, learned counsel for the plaintiffs refers to the court proceedings, as recorded in FIR No.285/2001, right from the year 2004 upto the year 2012, where the presence of the applicants/defendants No.2 &3 has been marked on different occasions.
11. The Court has heard the learned counsels for the parties and considered their respective submissions in the light of the documents placed on record.
12. It is settled law that condonation of delay is a matter of discretion of the court and ordinarily, the court should be liberal in condoning the delay if it is satisfied that the explanation offered by a party is bonafide and sufficient and advances the cause of justice. Further, the courts should not adopt pedantic approach and insist that each and every day's delay be explained by the applicant. The length of delay is not as relevant as the acceptability of the explanation offered by the litigant. As observed by the Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamoorthy 1998 (7) SCC 123, the time limit fixed for approaching the court in different situation is not because on expiry of such time, a bad cause would transform into a good cause. The aforesaid parameters have been reiterated in a IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 7 of 12 number of decisions including in the cases of Sangram Singh Vs. Election Tribunal, Kotah, AIR 1995 SC 425; State of Nagaland Vs. Lipok Ao & Ors. AIR 2005 SC 2191; New India Insurance Co. Ltd. Vs. Shant Mishra, 1975 (2) SCC 840 and State of Kerala Vs. E.K. Kuriyipe & Ors. (1981) Suppl. SCC 72. At the end of the day, the courts are meant to advance substantial justice and adjudicate disputes between the parties. However, when the delay is as inordinate as it is in the present case, then the explanation offered by the applicants must be examined by the court with greater care and caution to rule out gross negligence, deliberate inaction or lack of bonafides.
13. In the present case, the defendants No.2 & 3 have sought condonation of delay of 2360 days in filing the accompanying application, under the provisions of Order IX Rule 7 CPC. The applicants/defendants No.2 & 3 have mainly referred to their ill health to explain the lack of diligence on that part in pursuing the present case. That apart, they have sought to blame their previous counsel, who they claimed they had trusted, for pursuing the present proceedings on their behalf. The aforesaid explanation offered by the defendants No.2 & 3 for seeking condonation for such a prolonged period is to say the least, extremely vague and sketchy.
14. It has been observed time and again that a litigant is expected to be diligent in pursuing his own case and he cannot remain indolent and inactive IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 8 of 12 and then lay the entire blame at the door of his counsel when found in default. The claim of the applicants/defendants No.2 & 3 that they had executed a vakalatnama in favour of the previous counsel is not borne out from the record, inasmuch no vakalatnama has been filed on their behalf in the present case. Further, the claim of the defendants No.2 & 3 that they had prepared a written statement and had handed it over to their counsel in September 2004, for the same to be filed, is also not borne out upon perusal of the records, as no written statement finds place on record nor has any date of filing of diary number been furnished to substantiate the said submission.
15. It is impermissible for the defendants No. 2&3 to have remained slothful for almost eight years without bothering to verify the status of the present case. Both the defendants are admittedly literate persons and are therefore expected to be well aware of the fall out of the present litigation and in such circumstances when they state that their stake in the case is significant, they ought to have been diligent enough to have pursued the case regularly and conscientiously with their counsel. The explanation offered by the defendants No. 2 and 3 that they had engaged a counsel and had trusted her enough not to follow up the status of their case with her, is therefore unacceptable. On a pointed query addressed to learned counsel for the defendants No.2 & 3 as to whether they had lodged any complaint IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 9 of 12 against the counsel who was previously engaged by them for her failure to diligently prosecute the present case on their behalf, the answer is in the negative. In such circumstances, the court is not at all convinced by the explanation offered by the defendants No.2 & 3 that it was due to their ill health and on account of their implicit trust in their previous counsel that they had not followed up this case with the due diligence expected of a vigilant litigant.
16. The aforesaid observation is fortified by the fact that it is an admitted position that defendants No. 2 & 3 were being represented by a counsel in the recovery proceedings, initiated against them by the defendant No.1/Bank before the Debt Recovery Tribunal, Delhi and not only that, on certain occasions, the defendant No.2 had personally appeared before the Tribunal. Moreover, the plaintiffs have placed on record the details of the proceedings of the present case before the Debt Recovery Tribunal and therefore, the defendants No.2 & 3 cannot claim that they remained blissfully unaware of the status of the proceedings in the present case.
17. There is merit in the submission made by learned counsel for the plaintiffs that the defendants No.2 & 3 were all along aware of the present proceedings and chose to remain fence sitters in the hope that the suit property that had been mortgaged by them with the defendant No.1/Bank would remain entangled in prolonged litigation and at a convenient point in IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 10 of 12 time, they would jump into the fray and seek to participate in the present proceedings. The fact that the plaintiffs had filed a criminal complaint against the defendants No.2 & 3 pursuant where to an FIR was lodged against them and a criminal case arising therefrom is pending, where both the defendants have taken bail and were regularly appearing before the concerned court, is a clear pointer to the fact that they had deliberately chosen to be active where they wanted to and had remained inactive when it suited them.
18. In view of the aforesaid facts and circumstances, the court is of the opinion that there is no explanation worth the name, much less a bonafide explanation offered by the applicants/defendants No.2 & 3 for seeking condonation of delay of a long stretch of 2360 days in filing an application under Section 5 of the Limitation Act. Even otherwise, the court has perused the averments made in the application filed by the applicants/defendants No.2 & 3 under Order IX Rule 7 CPC for setting aside the ex-parte order dated 8.9.2004 and the explanation offered is virtually the same as has been stated in the application for condonation of delay, except for the fact that the defendants No.2&3 have additionally questioned the nature of the settlement that has been arrived at between the plaintiffs and the defendant No.1/Bank. The said explanation is found to be insufficient and highly unsatisfactory for the court to exercise its discretion in favour of the IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 11 of 12 applicants/defendants No.2 & 3. It cannot be stated that the defendants No.2&3 have acted with reasonable diligence in defending the present case. The gross negligence and deliberate inaction on their part is sufficient to deprive them of the protection granted by Section 5 of the Limitation Act.
19. In view of the above facts and circumstances, the present applications are found to be devoid of merits and are dismissed with costs of `20,000/-, payable to the non-applicants/plaintiffs, within two weeks.
(HIMA KOHLI) JUDGE DECEMBER 11, 2012 mk/raj IAs No.11281 & 11283/2012 in CS(OS) No.99/2004 Page 12 of 12