Calcutta High Court
State Bank Of India vs Taril Appliances And Equipment Pvt. ... on 16 December, 2005
Equivalent citations: AIR2006CAL121, II(2007)BC515, 2006(2)CHN391, AIR 2006 CALCUTTA 121, 2006 (2) AJHAR (NOC) 599 (CAL), 2006 A I H C 1958, (2006) 46 ALLINDCAS 658 (CAL), (2006) 2 ICC 251, (2007) 2 BANKCAS 515, (2006) 2 CAL HN 391
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, Jayanta Kumar Biswas
JUDGMENT Bhaskar Bhattacharya, J.
1. These are the applications for recalling order dated 19th March, 2002 passed by a Division Bench dismissing those appeals for default along with the prayer of condonation of delay in filing these applications.
2. Being dissatisfied with an order dated 19th March, 1993 passed by a learned Single Judge thereby allowing an application of respondent Nos. 2 and 3 for taking of the plaint out of the file and dismissing the suit after rejecting an application filed by the applicant for extension of time for service of summons upon those respondents, the present applicant preferred two separate appeals before the Division Bench of this Court. On 19th March, 2002 when those appeals were called for hearing, as none appeared on behalf of the appellant those appeals were dismissed for default. It may be mentioned herein that at the time of dismissal of those appeals for default even none appeared on behalf of the respondents.
3. Subsequently, more than three years thereafter, in the month of August, 2005, the present applications for restoration along with an application for condonation of delay in filing these applications have been filed on the ground that on the date fixed for hearing, the dealing assistant of the learned Advocate-on-record of the applicant who was looking after the matter could not come to Court due to his personal difficulty and consequently, the learned Advocate-on-record also could not look after the matter and as such, the appeals were dismissed for default.
4. In the application it is further stated that although the appellant's Advocate-on-record by letter dated 19th March, 2002 had informed the appellant about the aforesaid dismissal of the appeals, the appellant in its turn could not send any instruction to the Advocate-on-record of the appellant as the Officers-in-charge of the concerned branch of the appellant were transferred from time to time.
5. It is further stated that only on 9th June, 2005, the Advocate-on-record further sent a letter to the Bank reminding the Bank of the dismissal and consequently, on 7th July, 2005 the appellant disclosed the name and designation of the person who would sign the petition for taking necessary steps and as such, due to such communication gap there has been delay in filing the present applications.
6. The aforesaid applications are opposed by the respondent Nos. 2 and 3 alleging that the appellant was all along negligent as would appear from the conduct of the appellant from the very beginning. It is pointed out that although the appellant filed the suit on 4th March, 1989 no step was taken for service of notice upon the respondent Nos. 2 and 3 within the time prescribed by the Original Side Rules, as a result, in the month of June, 1992, the respondent Nos. 2 and 3, of their own made an application for dismissal of the suit for non-service of the writ of summons. After receiving the copy of such application, the plaintiff-Bank prayed for issue of summons and service upon the respondent Nos. 2 and 3 on extension of time.
7. The Court, however, dismissed the Bank's application for extension of time and allowed the application of the respondent Nos. 2 and 3 thereby dismissing the suit as against them.
8. It is further stated that being dissatisfied, the Bank had preferred the aforesaid two appeals and even at the time of hearing of those two appeals, none appeared on behalf of the Bank. It is further pointed out that although those appeals were dismissed for default on 19th March, 2002 and according to the averments made in the application, such fact was immediately communicated to the plaintiff-Bank, the Bank authority did not take steps for restoration in course of the next three years and more and no explanation was given in the application as regards such inaction. According to the respondent Nos. 2 and 3, by merely making a vague statement that the officers of the Bank were transferred, the appellant did not discharge its liability of explaining every day's delay. The respondent, thus, prayed for dismissal of the applications.
9. At the time of hearing, Mr. Bhattacharya, the learned Advocate appearing on behalf of the appellant at the very outset submitted that the suit was filed not only against the company who took a loan from the Bank but also against the guarantors, the respondents herein. Mr. Bhattacharya submits that summons of the suit was very much served upon the company but there was some delay on the part of the Bank in taking step for service of summons upon respondent Nos. 2 and 3 but the moment respondent Nos. 2 and 3 appeared in the suit, there was no necessity of even further issuing any summons, and at any rate, the suit could not be dismissed against those respondents on the ground of non-service of summons. Mr. Bhattacharya tried to impress upon us that his client has very good chance of success in the appeals and unless those are restored, his client would suffer irreparable loss and injury and the respondents will be absolved of their liability to pay of the dues for which they stood as guarantors. Mr. Bhattacharya relied upon the following decisions in support of his contention that the delay in filing the applications should be condoned :
1. Pratima Mondal v. Dharidnar Mondal reported in 1998(1) CLJ 22.
2. N. Balakrishnan v. M. Krishnamurthi .
10. Mr. Mukherjee, the learned Senior Advocate appearing on behalf of the respondents vehemently opposed the contentions of Mr. Bhattacharya and contended that at this stage the Court should not look into the merit of the matter but should confine its scrutiny only to the question whether there was sufficient ground of non-appearance of the learned Advocate at the time of hearing of the appeals and whether the delay in filing these applications has been sufficiently explained. Mr. Mukherjee submits, it was the duty of the bank to disclose the names of the officers who were negligent and did not give any instruction to the learned Advocate-on-record and what were their respective dates of transfer from the said branch. According to Mr. Mukherjee, in the absence of those materials the Court should not rely upon the aforesaid vague allegation made in the application. In support of his contention Mr. Mukherjee relies upon the following decisions:
1) State Bank of India v. Balito Engineering Corporation .
2) State of West Bengal v. Brojesh Chandra Singha Burman .
3) Income Tax Officer v. Indian Overseas Corporation reported in 1993 (1) CLT 132.
11. After hearing the learned Counsel for the parties and after going through the materials on record we find that in this case the sole question that arises for determination before us is whether there was any cogent ground of non-appearance of the learned Counsel when the matter was called and whether appellant was prevented by sufficient cause from filing the present applications for restoration within the period of limitation.
12. At the very outset, we should bear in mind that the term, "sufficient cause" appearing in Order 41 Rule 19 of the Civil Procedure Code should be construed more liberally than the one appearing in Order 9 Rule 9 of the Code because in case of an appeal, a litigant is not supposed to appear on the date of hearing once he has engaged a lawyer to represent him. The litigant remains confident that his lawyer will appear and make submissions when the appeal will come up for hearing; on the other hand, in case of hearing of a suit, the litigant has a duty to appear before Court for the purpose of giving evidence. In this case, the fault on the part of the learned Advocate and that of his office have been put forward as grounds of restoration and such ground has been drafted by the self-same learned Advocate and the application has been prepared in the office of the same lawyer. We are, therefore, convinced that sufficient cause has been made out for non-appearance of the learned Advocate for the appellant when the matters were dismissed for default as in our opinion the appellant should not be penalised for the fault of its lawyer or the dealing assistant of the lawyer.
13. However, the application having been filed beyond the period of limitation prescribed by law and the fact that the appeals were dismissed having been communicated to the appellant immediately after the order of dismissal, it is the duty of the appellant to show that it was prevented by sufficient cause from filing the application for restoration within the period of limitation. In this case, it is alleged that due to the transfer of the officers of the concerned branch, there was communication-gap between the office of the learned Advocate and the Bank. At this stage, we cannot lose sight of the fact that unlike an individual litigant, when the appellant is a Bank, it has to rely upon its officers for the purpose of proceeding with litigation. The Court can also take judicial notice of the fact that the State Bank of India is involved with various litigations of the type we are concerned where the Bank being unable to get back loan advanced to the citizen approaches the Court for recovery of its money. It is true that the learned advocate for the Bank while drafting the application for condonation of delay ought to have been cautious in disclosing in details the names of the officers who were in-charge of the concerned branch at the relevant time. But as indicated earlier, the respondents also did not appear when the appeal was dismissed and as such, strictly speaking, the respondents have no locus standi to oppose these applications. In such a situation, we propose to take a liberal approach in the matter and instead of giving a further direction to affirm supplementary affidavit disclosing the names of the officers posted at the concerned branch at the relevant time, to believe the case of the appellant that the dismissal orders in these cases remained unnoticed for a long time although the learned Advocate for the appellant duly communicated such orders.
14. We now propose to deal with the decisions cited by Mr. Mukherjee.
15. In the case of State Bank of India (supra), a Division Bench of this Court was considering an application for condonation of delay in filing an appeal. It appears from the said judgment that the Division Bench found fault in the application for condonation of delay as the delay at every stage was not properly explained. The Court found that the application for condonation of delay was filed at a point of time when the memorandum of appeal was not even made ready although in the body of the application for condonation of delay it was specifically averred that the same was already made ready. The Division Bench thus practically disbelieved the case of the petitioner made in the application for condonation of delay. In the case before us, we do not find any reason to disbelieve the case of the appellant that due to change of the officers of the concerned branch, the initial letter of the learned Advocate for the appellant was not adhered to at the relevant point of time. We, thus, find that the aforesaid decision cannot help the respondent in any way. At this juncture, we find substance in the contention of Mr. Bhattacharya that if the Court is satisfied with the sufficiency of the reason, the length of delay is not so vital as laid down by the Apex Court in the case of N. Balkrisnan (supra).
16. In the case of State of West Bengal v. Brojesh Chandra (supra), a Division Bench of this Court was considering the long delay of 1927 days in preferring an appeal beyond the period of limitation. In that case, the Division Bench found gross inaction and negligence on the part of the State in the process of preferring the appeal after such a long time causing delay in making payment of just dues to a citizen whose land was acquired. The Court in such circumstances opined that the State cannot be considered as a favoured litigant. In the case before us, due to transfer of the officer of the concerned branch, the appellant could not take appropriate step for restoration and we have believed such statement although we accept the contention of the respondents that the names of those officers and the dates of their assuming charge ought to have been mentioned. But as the respondent was also not present at the time of dismissal of the appeal we instead of giving fresh direction for filing supplementary affidavit disclosing those information propose to accept the explanation offered. Therefore, the said decision does not apply to the facts of a case where the sufficiency of the reason has been accepted by the Court.
17. In the case of Income Tax Officer (supra), a Division Bench of this Court in the facts of the case decided not to condone the delay. It appears that the main judgment was delivered by Guin, J. disapproving the conduct of the appellant in preferring the appeal and A.M. Bhattacharjee, A.C.J., the other learned Judge of the Bench, observed that His Lordship was of the view that in the facts of the said case the delay was not explained. Therefore, the said decision cannot be put forward as a precedent as there cannot be any precedent on a question of fact. (See: Ram Kumar Sarma v. Mani Kumar Subba reported in AIR 2003 SC 51). The decisions cited by Mr. Mukherjee are thus of no avail to his clients.
18. We, therefore, condone the delay in filing these applications and at the same time hold that the learned Advocate for the appellant was prevented by sufficient cause from appearing when the appeals were dismissed for default.
19. We thus, allow these applications and consequently, restore the appeals after recalling the order dated March 19, 2003 in the aforesaid two appeals. No costs.
Jayanta Kumar Biswas, J.
20. I agree.