Karnataka High Court
M/S Esz Marchegk N Luies vs The Branch Manager on 31 May, 2013
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 31ST DAY OF MAY 2013
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
R.F.A. No. 289/2012
BETWEEN:
M/S. ESZ MARCHEGK. N. LUIES
A registered partner ship firm
No. 1805/07, Brahmin Street,
Kolar, Rep. by its Partners
a) Sri Ruthum Parnaraju
b) Sri Umadhava Raju
c) Sri Purushothamraju
d) Smt Rukmani. ...APPELLANTS
(By Sri M.S.Rajendra Prasad, Sri. Counsel)
AND:
1. The Branch Manager
The Karnataka State Financial Corporation,
Kolar Branch,
Kolar 563 101.
2. Mr. B. Balasubramanyam
S/o. B.S.Rangaiah Setty,
R/o. Big Bazaar,
Kolar 563 101.
2
3. The Deputy Commissioner
Kolar 563 101. ... RESPONDENTS
(By Sri Bipin Hegde, Adv. for R1
Sri J.G.Chandramohan, Adv. for R2
R3-served)
This RFA is filed under Section 96 CPC against the
judgment and decree dated 28.02.2007 passed in
P.Misc.28/2004 on the file of the Principal District
Judge, Kolar.
This RFA coming on for orders this day, the Court
delivered the following:
JUDGMENT
There has been delay of 1724 days in filing this appeal. Appellant has sought for condonation of the said delay. The cause for this delay has been set out in the affidavit filed in support of the application filed. Contesting respondents have opposed the application by filing objections.
2. This appeal is directed against the order dated 28.02.2007 passed by the Principal District Judge, Kolar, rejecting the proposed plaint filed along with the petition as not maintainable on the ground that 3 the proposed plaint cannot be entertained by the Civil Court, as, it is barred under Section 9 of CPC.
3. Appellant has filed aforesaid petition before the trial Court along with the proposed plaint seeking relief of declaration that the sale of suit schedule property by the 1st defendant in favour of the 2nd defendant on 29.12.1994 is sham, null, void and illegal and for permanent injunction restraining the 2nd defendant from alienating or creating charge over the suit schedule property and to direct the defendants to hand over the property to the plaintiff.
4. The undisputed facts are that the appellant availed certain financial facilitates from KSFC and for the repayment of the said loan amount, suit properties were hypothecated. The loan amount was agreed to be repaid in monthly installments. It appears that the appellant failed to pay even the 1st monthly installment. The KSFC called upon the appellant to pay the entire loan amount. However, the appellant failed to respond. 4 Therefore, KSFC invoked its powers conferred under Section 29 of the State Financial Corporation Act and took possession of the unit and subsequently the unit was sold in public auction, in which, the 2nd defendant's bid, which was highest, was accepted. Questioning the said auction, the appellant filed writ petition before this Court in W.P.No.36946/1994. However, subsequently on 19.08.2002, the appellant withdrew the said writ petition. Thereafter, the appellant filed the proposed plaint along with petition under Order 33 Rule 1 of CPC.
5. As stated supra, the trial Court after hearing the counsel for the appellant rejected the proposed plaint as well as the petition filed under Order 33 Rule 1 of CPC as not maintainable. It is the contention of the appellant that after the order passed by the trial Court, he filed an appeal before this Court in M.F.A.No.260/2008 which came to be dismissed by this Court on 16.09.2008 as not maintainable. Thereafter in the year 2011, review petition bearing No.464/2011 5 came to be filed which came to be dismissed on 11.01.2012. Thereafter, the appellant was advised to file appeal against the order of the trial Court. Thus, according to the appellant, he was prosecuting the matter before wrong forum on account of which there has been some delay.
6. The respondents have seriously opposed the said application.
7. Having heard Sri M.S.Rajendra Prasad, learned Senior Counsel appearing for the appellant and the counsel appearing on behalf of the contesting respondents, I am of the considered opinion that there is no justifiable ground to condone the inordinate delay of 1724 days in filing this appeal and the matter is also appears to be highly stale, since the subject matter of the proposed suit was the auction held in the year 1994 nearly about 18 to 20 years ago. As noticed supra, M.F.A.No.260/2008 was disposed of on 16.09.2008. This appeal came to be filed on 16.02.2012. The fact 6 that the appellant chose to file review petition in the year 2011 and thereafter presented this appeal, the explanation offered in this petition cannot be accepted as satisfactory. Even the review petition was filed in the year 2011 nearly about 3 years after the disposal of the appeal.
8. Having regard to the facts and circumstances of the case, I am of the considered opinion that the cause shown in the affidavit filed in support of the application is not satisfactory and on that basis, inordinate delay of 1724 days in filing this appeal cannot be condoned. Even on merits, I do not find any ground to entertain this appeal. In this view of the matter, the application as well the appeal is dismissed.
Sd/-
JUDGE VP