Andhra HC (Pre-Telangana)
State Bank Of India vs Sri Veera Hanuman Rice And Flour Mill And ... on 28 July, 2000
Equivalent citations: 2000(5)ALT295
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. This Civil Revision Petition is directed against the order 11-9-1996 passed by the learned Subordinate Judge, Ramachandrapuram dismissing the I.A. No. 1079 of 1994 filed by the petitioner-Bank to condone the delay of 714 days in filing the petition for passing of final decree in O.S. No. 93 of 1987.
2. This Court by an order dated 29th June, 1999 allowed the Civil Revision Petition by setting aside the impugned order. The delay was condoned subject to payment of costs of Rs.2,000/- to the learned Counsel for the respondents within six weeks from the date of the order. The Respondents herein carried the matter to the Supreme Court in Civil Appeal No. 2896 of 2000. The Supreme Court of India by its order dated 24-4-2000 set aside the order passed by this Court in C.R.P. No. 610 of 1998 and remitted the same for fresh disposal by this Court after considering the contention of the appellants therein with reference to the appearance in Court of the Legal Advisor and the Advocate of the Bank in other cases. That is how the matter is once again listed before this Court for hearing and disposal.
3. Before adverting to the question as to whether the order passed by the learned Subordinate Judge suffers from any material irregularity or jurisdictional error requiring interference of this Court in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure, it may be necessary to notice the relevant facts:
The petitioner-Bank filed O.S. No. 93 of 1987 against the respondents herein for recovery of suit amount and for other reliefs. The learned Subordinate Judge, Ramachandrapuram (now designated as Senior Civil Judge) decreed the suit on 31-12-1987 for a sum of Rs.70,087-75 paise and the time for redemption was given till 31-3-1988. Admittedly the petitioner-Bank ought to have filed an application for passing of final decree in case of default on the part of the respondents herein on or before 31-3-1991, but the petitioner herein actually filed the application on 27-10-1994 for passing of final decree invoking the Order XXXIV Rule 5 of the Code of Civil Procedure along with an application under Section 5 of Limitation Act seeking condonation of delay of 714 days.
4. It is stated in the affidavit filed in support of the application to condone the delay that the second respondent herein being the sole proprietor of the first respondent-rice mill has filed an Insolvency Petition in the Court of the learned Subordinate Judge, Ramachandrapuram which is numbered as I.P. No. 6 of 1987, in which the petitioner-Bank is shown as 60th respondent, agreeing inter alia the debt due to the plaintiff-Bank. It is stated that the plaintiff-Bank was ''under the view that the Insolvency Petition wherein the debt due to the plaintiff-Bank was acknowledged the liability by the respondents, will run fresh cause of action apart from the final decree petition to be filed within three years after expiry of the time for redemption granted in the preliminary decree". It is further stated that the admission made by the respondents herein in I.P. No. 6 of 1987 would save the limitation for final decree petition to be filed within three years from the date of disposal of said Insolvency Petition. It is further pleaded that the legal advisor of the petitioner-Bank was seriously ill and was bed-ridden and still he was recovering to his normal health. It was suggested that in the circumstances there were no wilful laches on the part of the petitioner-Bank and the officials of the Bank in not filing the petition for passing final decree. It is an admitted fact that I.P. No. 6 of 1987 was disposed of by the learned Subordinate Judge, Ramachandrapuram on 20-11-1992. It is pleaded on behalf of the petitioner-Bank that fresh cause of action would arise in favour of the Bank and the period of three years would commence from the date of disposal of Insolvency Petition, that is to say from 20-11-1992. In the process, there is a delay of 714 days.
5. The second respondent herein filed a detailed counter opposing the application to condone the delay. It is stated that the Insolvency Petition was filed on 15-9-1987, and therefore, the petition for passing of final decree has to be filed within three years from the date of alleged admission in the said Insolvency Petition. It is also stated that the pendency of Insolvency Petition is of no avail to the petitioner-Bank and the period of limitation for filing final decree petition cannot be reckoned from the date of disposal of Insolvency Petition, that is to say, from 20-11-1992. The allegation made in the affidavit filed in support of the petition that the Bank's Advocate Sri. V.V. Bhaddi Raju was ill is denied. It is stated that during the relevant period, the Advocate was very hale and healthy and was attending to the work in the Courts.
6. There is no reply affidavit filed by the petitioner-Bank disputing the averments made in the counter. The learned Subordinate Judge after an elaborate consideration of the matter rejected the application filed by the petitioner-Bank to condone the delay.
7. In this Civil Revision Petition, the learned Counsel for the petitioner-Bank contends that the affidavit filed by the petitioner-Bank in support of the application to condone the delay discloses sufficient reasons to condone the delay. The learned Counsel for the respondents vehemently opposes the application.
8. The petitioner-Bank in its application specifically stated that the legal advisor of the Bank was not well during the relevant time. No material whatsoever is made available by the petitioner-Bank either before the trial Court or before this Court in support of the said plea. No medical certificate as such is made available for perusal of the Court. There is not even an affidavit of the learned Advocate of the Bank filed either in the trial Court or in this Court. Non-filing of medical certificate and at least an affidavit by the learned Advocate appearing on behalf of the Bank attains some significance in view of specific averment in the counter denying the illness of the Bank's Advocate. On the other hand, it is specifically stated in the counter filed by the respondents that the learned Advocate of the Bank was regularly attending to his work in the Courts. There is not even any reply disputing the correctness of that averment. The other averments made in the affidavit filed in support of the petition to condone the delay are vague and indefinite.
9. A Division Bench of this Court in Government of Andhra Pradesh rep. by its Secretary, Social Welfare Department v. C. Balaiah, W.A. No. 922 of 1999 and Batch, dated 1-11-1999. observed:
"The avowed object of limitation is that the sword of uncertainty should not be kept hanging on the head of a litigant for indeterminate period. The object of the limitation is that parties should be able to enjoy the result of the litigation without there being any uncertainty."
10. Another Division Bench of this Court in State of A.P. v. Sayanna, (D.B.). observed:
"There is a limit to the liberality and the latitude that could be shown to the State while dealing with condone delay applications. The maxim interest reipublicae up sit finis litium which is the foundation of law of limitation is based on considerations of public policy and should not be diluted to a point of illusion and the rules of limitation cannot be rendered otiose and inconsequential on the plank of public interest."
It is further observed by this Court;
"The State just as a private party is not relieved of the obligation to satisfy the Court of the existence of sufficient cause in preferring the appeal belatedly. The expression 'sufficient cause' being a word sufficiently elastic and flexible, the approaches of the Court while considering the question of sufficiency of the cause shown could differ, depending upon the accepted position in which the litigant is placed. When the State or its agent is the applicant, the concept of sufficient cause' should be viewed, having due regard to the practical realities of Governmental functioning and peculiar handicaps afflicting the system. Strict insistence on the traditional principle of explaining every day's delay is not warranted. A wider latitude in the matter of exercise of discretion to condone the delay keeping in view the said peculiar features is therefore called for, otherwise, if those peculiar characteristics and features are eschewed from consideration and the Court proceeds to apply the same yardstick, it would amount to adopting a pedantic or mechanical approach and that would lead to miscarriage of justice. Uniformity in approach in dissimilar situations would amount to application of law in an uneven manner. The spirit and philosophy underlying Section 5 of the Limitation Act would then be defeated. The public interest may irretrievably suffer. The Court has to properly balance the considerations of public interest on the one hand and public policy that lies at the root of the law of limitation on the other. But there is a limit to which the Court can go. It must be remembered that the difference in approach does not mean that any explanation given by the official of the State should be glibly swallowed and the Court should stretch a point to bring the explanation within the ambit of 'sufficient cause' at any cost. The factors and causes contributing to the delay should bear reasonable nexus to the concept of 'sufficient cause' and should pass the test of reasonableness and genuineness. Where the delay is too long, cogent and convincing reasons are expected from the petitioner, because the burden to satisfactorily explain the delay would then be heavier. The governmental authorities cannot shrug off the responsibility by merely pleading endless and long winding correspondence and Office notes. There must be some end to the correspondence and interaction and decision making."
11. We shall bear in mind the principles enunciated in the said decision and examine as to whether the affidavit filed in support of the petition discloses any sufficient cause as such. We have already noticed that in the affidavit filed in support of the application sworn and signed by the in charge Manager of the petitioner-Bank it is averred that the application for passing of final decree could not be filed in view of the fact that the Advocate of the petitioner-Bank Sri V.V. Bhaddi Raju was bedridden. But, there is no material in support of the said averment. The assertion made by the petitioner-Bank in the affidavit is denied in categorical terms by the respondents. The respondents not only denied the averment made in the affidavit about the illness of the Advocate, but further stated that the said Advocate was attending to his normal duties in the Courts. In such view of the matter, it is not possible to accept the plea put forth by the petitioner-Bank that the petition for passing of final decree could not be filed in the Court on account of ill-health of the Advocate.
12. It is not possible to accept the plea of the petitioner-Bank that it was under the impression that the pendency of Insolvency Petition filed by the second respondent herein would automatically extend the period of limitation for filing the petition for grant of final decree. Even otherwise, it is required to notice that the Insolvency Petition filed by the second respondent herein was disposed of by the learned Subordinate Judge on 20-11-1992, whereas the application for passing of final decree is filed along with an application to condone the delay on 27-10-1994. There is no explanation forthcoming whatsoever as to what transpired from 20-11-1992 to 27-10-1994.
13. In the circumstances, the conclusion is inescapable that the affidavit filed in support of the petition to condone the delay does not disclose any cause much less sufficient cause. Even if some consideration is shown to the petitioner-Bank since it is an instrumentality of the State, yet it is not possible to condone the delay for the reason that the affidavit is bereft of required particulars. It does not disclose any sufficient cause for condoning the delay.
14. For all the aforesaid reasons, the Civil Revision Petition fails and shall accordingly stand dismissed. No order as to costs.