Gujarat High Court
Catholic Syrian Bank Ltd vs A C Industries & on 30 July, 2013
Author: Jayant Patel
Bench: Jayant Patel
CATHOLIC SYRIAN BANK LTD....Applicant(s)V/SA C INDUSTRIES C/CA/3409/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3409 of 2013 In FIRST APPEAL (STAMP NUMBER) NO. 546 of 2013 ================================================================ CATHOLIC SYRIAN BANK LTD....Applicant(s) Versus A C INDUSTRIES & 4....Respondent(s) ================================================================ Appearance: MR KM PARIKH, ADVOCATE for the Applicant(s) No. 1 MR DEVESH A BHATT, ADVOCATE for the Respondent(s) No. 2 - 4 MR JITENDRA M PATEL, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 NOTICE UNSERVED for the Respondent(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/07/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) The present application is preferred for condonation of delay of 2501 days in preferring the appeal against the judgment and decree of the trial Court which is impugned in the First Appeal.
We have heard Mr.Parikh, learned counsel appearing for the applicant and Mr.Patel, learned counsel appearing for the respondent No.1 original plaintiff.
The contention raised on behalf of the applicant is that after the exparte judgment and decree passed by the trial Court, the application was preferred under Order 9 Rule 13 of the Civil Procedure Code for setting aside the exparte order. The said application came to be dismissed against which the applicant preferred Special Civil Application No.23274 of 2006 and the said Special Civil Application was entertained and then interim injunction was granted. However, at the time of final hearing the said petition was withdrawn with a liberty to file appropriate proceeding before the appropriate forum which as per the applicant is the present appeal and, therefore, in the submission of the learned counsel for the applicant Section 14 would be attracted for condonation of delay since the applicant was pursuing the remedy in bonafide before the appropriate forum. He submitted that, therefore, it is a good case to condone the delay. The learned counsel for the applicant relied upon the decision of the Apex Court in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and others, reported in (2008) 7 SCC 169 and decision of the Apex Court in the case of Union of India and others Vs. West Coast Paper Mills Ltd., and another, reported in (2004) 3 SCC 458 and submitted that pursuing the remedy in bonafide or in good faith and the defect of jurisdiction, both are to be liberally interpreted and, therefore, the delay deserves to be condoned.
It may be recorded that it is not a matter of condonation of delay for shorter period, but it is a matter of condonation of delay for longer period and that too of about six years and eight months. The approach on the part of the Court as per decision of the Apex Court in the case of Oriental Aroma Chemical Industries Ltd., Vs. Gujarat Industrial Development Corporation and Anr., reported in (2010) 5 SCC 459 would be rather strict approach in considering the cases where the delay is for a longer period. In the said decision the Apex Court observed at para 14, 15 and 16 as under :-
14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression sufficient cause employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, (L.A.) v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil.
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay G. Ramegowda v. Land Acquisition Officer, State of Haryana v.
Chandra Mani, State of U.P. v. Harish Chandra, State of Bihar v. Ratan Lal Sahu, State of Nagaland v. Lipok AO and State (NCT of Delhi) v.
Ahmed Jaan.
We are conscious of the fact that the observation made by the Apex Court in the above referred decision was pertaining to the exercise of power under Section 5 of the Limitation Act and in those cases the question was not for considering the ground under Section 14 of the Act. But, in our view, the principles for exercising of discretion as are available under Section 5 can be made applicable when the power is also to be exercised under Section 14, but subject to the requirement that the other conditions for attracting the power under Section 14 are satisfied. In the decision of the Apex Court in the case of Consolidated Engineering Enterprises (Supra) the Apex Court observed at para 21 and 31 as under :-
21 Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court.
31. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this Judgment have to co-exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essentially pre-requisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction. However, there can be no hard and fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. The mere filing of an application in wrong court would not prima facie show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the light of these principles, the question will have to be considered whether the appellant had prosecuted the matter in other courts with due diligence and in good faith.
Under the circumstances the facts of the present case may be required to be examined in light of the aforesaid observations of the Apex Court.
The pertinent aspect is that in the above referred decision in the case of Consolidated Engineering Enterprises (Supra) the Apex Court has observed that acting in good faith would not include anything which is not done with due care and attention and further the party who is guilty of negligence or lapse or inaction is not to be helped. On the aspect of defect of jurisdiction the same is to be considered with the other cause of like nature.
The facts of the present case as stated by the applicant in our view would not meet with the test for satisfaction of the condition to apply Section 14 for the following reasons;
(1) The applicant has not produced any documentary evidence for showing that after the exparte judgment and decree passed by the lower Court there was opinion received of a lawyer that the application should be filed under Order 9 Rule 13 of the Civil Procedure Code and not the First Appeal.
(2) Even after the dismissal of the application under Order 9 Rule 13 no opinion is produced by the applicant showing that the Bank was advised to prefer Review Application and not the First Appeal against the judgment and decree of the trial Court or even for challenging of the order for setting aside of the order passed under Order 9 Rule 13 by preferring Revision Application and/or petition under Article 227 of the Constitution of India.
(3) No material is produced to show any opinion received of the lawyer that the appropriate proceeding will be the petition under Article 226 and/or 227 after the application for review was dismissed.
(4)At the time when the Special Civil Application is withdrawn, no opinion is produced or any correspondence is produced showing that the Court prima faice observed that the Appeal would be the only remedy and not the petition which was already preferred under Article 226 and/or 227 of the Constitution of India against the order passed below Revision Application read with the order passed under Order 9 Rule 13 of the Civil Procedure Code.
(5) There is no averment made in the application that there was opinion by the lawyer and the applicant acted in bonafide for preferring the application for setting aside of the exparte judgment and the decree or for preferring the Revision Application or the Special Civil Application or for withdrawal of Special Civil Application.
In above view of the matter, it is not possible to find that the applicant acted in bonafide or in good faith. If without there being any opinion of the lawyer the proceedings are preferred, neither they can be termed as after taking due care and diligence nor they can be termed as acting in bonafide. Consequently such proceeding cannot be termed as in good faith.
On the question of defect of jurisdiction the Court has not expressed any opinion nor any correspondence or material is produced about any oral view expressed by the Court. No averment is made by the applicant in this regard in the present application. At para-9 it has been stated as under;
9. It is submitted that this Hon ble High Court vide oral order dated 01/03.2013 finally disposed of the above S.C.A. No.23274/2006 and permitted the applicant to withdraw said petition with a liberty to file appropriate proceedings before appropriate forum in accordance with law and while doing so, this Hon ble High Court have not expressed any opinion on merits of the case and have simply permitted the applicant to withdraw the petition so as to unable the applicant to pursue the remedy of appeal available under law.
On the contrary it has been observed that the Hon ble Court has simply permitted the applicant to withdraw the petition so as to enable the applicant to pursue the remedy of preferring an appeal available under the law.
In view of the aforesaid, we find that the conditions laid down for applicability of Section 14 as observed by the Apex Court in the case of Consolidated Engineering Enterprises (Supra) upon which reliance has been placed by the learned counsel for the applicant himself, are not satisfied.
In the decision of the Apex Court in the case of Union of India and others Vs. West Coast Paper Mills Ltd., it has been recorded at para-6 that the petition came to be dismissed by the High Court forming an opinion that for money claim of the nature made in the writ petition, writ jurisdiction was not appropriate forum and the writ petitioner was at liberty to file a civil suit for the claim. Here, in the present case, High Court has not made any observation about the maintainability of the petition preferred by the petitioner. It is true that the High Court permitted withdrawal for appropriate remedy before the appropriate forum, but thereby it cannot be said that the High Court formed an opinion that it had no jurisdiction or that the petition was not maintainable. On the contrary, in absence of above referred material one may say that the applicant on his own volition withdrew the petition, may be that the Court was not satisfied on merit and preferred the First Appeal by way of second round of litigation which, in our view, cannot be permitted, that too, after the delay of about six years and eight months.
In view of the aforesaid observations we find that the discretion does not deserve to be exercised for condonation of such a long delay of 2501 days. Hence, the present application deserves to be dismissed and is, therefore, dismissed.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) KKS Page 12 of 12