Delhi District Court
Solutions Unlimited vs Matrix Cellular (International) ... on 9 April, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) : SAKET: NEW DELHI
RCA No. : 37/2013
ID No.: 02406C0260522013
Solutions Unlimited
Through it Authorised Signatory,
Registered office at 199A,
East Azad Nagar, Street No.10,
Delhi 110051. ... Appellant
Versus
Matrix Cellular (International) Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi 110030. ... Respondent
Instituted on: 19.09.2013
Judgment reserved on:28.03.2014
Judgment pronounced on:09.04.2014
J U D G M E N T
1. This regular civil appeal has been preferred on 19.09.2013 seeking to assail the judgment and decree dated 31.05.2013 passed in civil suit No. 70/2013 passed by Ms. Veena Rani, Additional Senior Civil Judge (SouthEast) whereby the respondent (decree holder) was held entitled to recover from the appellant (judgement debtor) an amount of Rs. 59,869/ with RCA No. 37/2013 Page 1 of 14 interest at the rate of 12% per annum from the date of filing of the civil suit (05.07.2011) till realisation.
2. The appeal having been preferred belatedly, it is accompanied by an application under Order 41 Rule 3A CPC read with Section 5 of Limitation Act seeking condonation of delay.
3. On notice, the respondentdecree holder has appeared and seeks to contest the application for condonation of delay.
4. I have heard Ms. Bhanita Patowary, advocate for the appellant and Sh. Abhinay Gupta, advocate for the respondent. I have gone through the trial court record.
5. The judgment and decree was passed on 31.05.2013. As per Article 116 of the Limitation act, in the schedule appended to the Limitation Act, 1963, the appeal could have been preferred within 30 days of the date of decree. The civil courts had closed for summer vacations in the year 2013 with effect from 08.06.2013 (the second Saturday). Thus, ordinarily the limitation for filing the appeal would end on 01.07.2013.
6. The appeal, as presented has been submitted with a certified copy of the judgment and decree taken out by the appellant/applicant. It shows the application for the same was submitted on 06.09.2013. The certified copy had been made RCA No. 37/2013 Page 2 of 14 ready by the office on 12.09.2013 and was delivered on 18.09.2013. These facts show that even the move for preparing and filing the appeal was made much beyond the period of limitation.
7. The appellant/applicant calculates the delay to be of 99 days. His explanation in the application for condonation of delay is that though he was very vigilant and had always followed up with his advocate to ascertain the status of the matter, he was "misguided/misrepresented" by the counsel with the advice that he need not come to the court as everything would be handled. It is also claimed that Mr. Rajiv Goel, the authorised representative of the appellant having been preoccupied in some personal family dispute could not keep proper track and relied upon the advocate and learnt about the judgment and decree only on 19.08.2013 when he visited the court. The appellant/applicant, thus, attributed the delay to "unethical behaviour of the counsel" who had not appeared before the trial court and for which reason the case had remained "unheard". There is no explanation offered as to why the certified copy came to be applied for only on 06.09.2013 if the knowledge about the judgment had been gathered on 19.08.2013. RCA No. 37/2013 Page 3 of 14
8. The contentions of the appellant have been contested by the decree holder who had submitted that the grounds are false, frivolous and authored. It has been submitted that the appellant/applicant had full knowledge about the case and, thus, there are no grounds to condone the delay.
9. During the course of hearing, questions were raised, in answer to which the counsel for the appellant/applicant conceded that no complaint against the advocate in question had been submitted by the appellant/applicant with the Bar Council. It was submitted that since the advocate in question had been a close friend, it was deemed not necessary to proceed against him for having indulged in professional misconduct.
10.The counsel for the applicant has relied upon the law laid down by Hon'ble Supreme Court in (i) Esha Bhattacharjee Vs. Managing Committee of Reghunathpur Nafar Academy [2013(12) JT 450]; (ii) Bhagwan Singh Vs. Modern School [2013 (1) AD (Delhi) 481]; and State Bank of Patiala Vs. Anant Raj Agencies Properties [2012 (132) DRJ 628].
11.In Esha Bhattacharjee (supra), the principles governing the subject of condonation of delay have been culled out by Hon'ble RCA No. 37/2013 Page 4 of 14 Supreme Court as under: "i) There should be a liberal, pragmatic, justiceoriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining factsituation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causations of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bonafides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) it is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness RCA No. 37/2013 Page 5 of 14 and it cannot be allowed a totally unfettered free play.
Viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
RCA No. 37/2013 Page 6 of 14
xiii) The State or a public body or any entity representing a collective cause should be given some acceptable latitude.
12. In the case of Bhagwan Singh (supra), Hon'ble High Court upheld the order of Additional District Judge condoning the delay against the backdrop of facts that the delay had been caused on account of negligence or misleading by the counsel against whom appellant in that case had filed a complaint with the Bar Council for disciplinary action and there was no malafide or dishonesty on the part of party in question.
13.In State Bank of Patiala (supra), the Hon'ble High Court observed that dismissal of case on technical ground of limitation would not benefit the interest of justice.
14.In M/s Democratic Builders Vs. U.O.I., 1992(2) CCC 79 it was, inter alia, held that application seeking condonation of delay was required to explain delay of each and every day. With reference to Soorajmal Nagarmal Vs. Golden Fibre and Products AIR 1969 Calcutta 381, it had been reiterated that sufficient cause within the contemplation of Section 5 of Limitation Act must be a cause which is beyond control of the party invoking the aid of the section. The cause for delay in RCA No. 37/2013 Page 7 of 14 making the application which by due care and attention could have been avoided cannot be sufficient cause within the meaning of Section 5 of Limitation Act.
15.In Union of India Vs. Major K.K. Taneja 43 (1991) DLT, the ground pleaded for condonation of delay was found to be "false" and, therefore, was held to be a circumstance which disentitled the appellant to any indulgence in the matter for condonation of delay.
16.The judgment in North Delhi Power Ltd. Vs. AAR ESS Industries 177(2011) DLT 632, referred to two decisions of Hon'ble Supreme Court namely Balwant Singh Vs. Jagdish Singh & ors. V (2010) SLT 790 and Ram Lal & others Vs. Rewa Coal Fields Ltd. AIR 1962 SC 36.
17. In the case of Balwant Singh (supra), Hon'ble Supreme Court made the following observations: "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definitive RCA No. 37/2013 Page 8 of 14 consequences on the rights and obligations of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay but showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party."
(Emphasis supplied)
18. Hon'ble Court found the averments made by the applicant in that case seeking condonation of delay to be "not correct" and ex facie lacking "bonafide". Against this back ground, it was observed as under: "The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed."
(Emphasis supplied)
19. In Ram Lal (supra), Hon'ble Court ruled as under: "7. In constructing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of RCA No. 37/2013 Page 9 of 14 limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269 It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all RCA No. 37/2013 Page 10 of 14 relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration,....."
(Emphasis supplied)
20. It is clear from the above decision of Hon'ble Supreme Court, the bonafide of the applicant is one of the relevant considerations at the stage of adjudication upon the application for condonation of delay. It is on this basis that Hon'ble High Court in North Delhi Power Ltd. (supra) held as under: "While dealing with an application for condonation of delay under Section 5 of the Limitation Act, the Court must bear in mind two important considerations. Firstly, the expiration of limitation for filing an appeal gives rise to a legal right to a decree holder to treat the decree as binding between the parties and this right should not be lightly disturbed. Second, if sufficient cause is shown for condonation of delay, the delay should be condoned. It has been repeatedly held by the Supreme Court of India that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice. In the same breath, it has been held that the discretion should be exercised, when there is no negligence or inaction nor want of bonafides imputable to the appellant the Court must be satisfied that there was due diligence on the part of the appellant."
RCA No. 37/2013 Page 11 of 14
(Emphasis supplied)
21. It was held in the cases of Darshan Lal Dhuper Vs. Motia Rani & ors [110 (2004) DLT 516] and Pradip Kumar Chakravarty Vs. Satish Miglani [164 (2009) DLT 392] that such contentions shifting the blame on to the previous lawyer cannot be accepted or acted upon in absence of any move to proceed before the disciplinary authority in the Bar Council against the concerned advocate.
22.Noticeably, even in the case of Bhagwan Singh (supra) cited by the applicant, the party in question had shown bonafide by proceeding against the advocate for disciplinary action.
23. The fact that no such action has been initiated, only reconfirms the fact that the previous counsel, to the knowledge of the applicant, was never at fault. With position having been taken about the advocate being friendly, the move to shift the blame on to him to seek condonation cannot be appreciated or approved.
24.In the case at hand, lack of bonafide is writ large on record of the case, efforts to prolong and protract the proceedings can be noticed even from the stage of trial. In the memorandum of RCA No. 37/2013 Page 12 of 14 appeal submitted by the appellant/applicant, the proceedings recorded on all material dates have been tabulated (in para 9). Even a cursory look at the said table would indicate that, to the knowledge of the appellant/applicant, his counsel Sh. Chetan Sharma, engaged for the trial court never appeared except once, i.e. on 16.04.2013 when the issues were settled. The authorised representative of the appellant/applicant was himself present in the court on three dates (29.09.2011, 13.12.2011 and 16.04.2013). His counsel was represented by a proxy on some of the other dates.
25. The date 09.05.2013 for evidence was fixed in the presence of the authorised representative of the appellant/applicant. If he was indeed prosecuting the matter vigilantly, he would have leant about the developments in the followup. The fact that the counsel engaged was not appearing having come to the knowledge of the appellant/applicant, there was no question of total reliance on his word.
26.In these circumstance, it is hardly a case where the counsel may have misguided or misrepresented the facts. This, coupled with the reluctance of the appellant/applicant to lodge even a protest against so called unethical behaviour of the advocate with the RCA No. 37/2013 Page 13 of 14 proper authority on the specious reason that he has been a close friend, renders the grounds submitted for condonation of delay unworthy of credence. The record smacks of gross negligence and lack of bonafides on the part of the appellant/applicant.
27.In the result, the application for condonation of delay does not deserve to be allowed. It is dismissed.
28.As a consequence, the appeal, being time barred cannot be entertained and, thus, stands disposed of accordingly.
29. The trial court record along with copy of this judgment be sent back.
30.The file of the appeal be consigned to record room.
Announced in open Court today
th
on this 9 day of April, 2014 (R. K. GAUBA)
District & Sessions Judge (South)
Saket, New Delhi
RCA No. 37/2013 Page 14 of 14