HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
WRIT PETITION NO.35220 OF 2022
Date: 08.09.2022
Between:
K.Raghuram Reddy s/o. K.Damodar Reddy,
Aged 53 years, occu: Business, r/o. Flat No.405,
Sterling Alegenza, West Marredpally,
Secunderabad and others.
..... Petitioners
and
The Bank of Baroda (erstwhile Vijaya Bank),
West Marredpally Branch, Secunderabad,
rep.by its Chief Manager & GPA Holder.
.....Respondent
The Court made the following:
PNR,J & JSR,J WP No.35220 of 2022 2 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SRI JUSTICE J.SREENIVAS RAO WRIT PETITION NO.35220 OF 2022 ORDER: (per Hon'ble Sri Justice P.Naveen Rao) Petitioners 1 and 2 are the borrowers and the respondent no.3 is the guarantor for the loan secured from the then Vijaya Bank now merged with the Bank of Baroda. As the petitioners defaulted in repayment of the loan amount, the Bank has taken steps to recover the amount by taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Act, 2002). Bank filed O.A.No.172 of 2005 before the Debts Recovery Tribunal-I, Hyderabad praying to pass orders against the person and properties of the petitioners 1 to 3 herein jointly and severally to pay the amount of 20,31,806/- with future interest @ 6% per annum with quarterly rests from the date of the application till the realization of the entire amount. Further prayer sought was to direct the sale of the mortgaged property as shown in the schedule for recovery of the amount. On service of notice, 3rd petitioner did not enter appearance. Petitioners 1 and 2 entered appearance, but did not file written statement/counter though sufficient time was granted to them. They were set ex parte on 18.12.2008. O.A. was finally allowed by order dated 07.08.2014.
PNR,J & JSR,J WP No.35220 of 2022 3
2. Petitioners filed I.A.No.2916 of 2018 to condone the delay of 1428 days in filing application to set aside the ex parte order passed against them. The Tribunal, by order dated 21.01.2019, dismissed the said application by noting down the details of adjournments underwent and holding that no justification is shown to condone the delay of 1428 days. Aggrieved thereby, petitioners filed Appeal No.20 of 2019 before the Appellate Tribunal at Kolkata. The Tribunal having considered the plea raised by the appellants and not satisfied with the explanation offered for condonation of huge delay, dismissed the Appeal by order dated 12.07.2022. Challenging the same, this Writ Petition is filed.
3. We have heard the learned counsel for petitioners.
4. Scope of Section 5 of the Limitation Act and scope of power of Court to condone the delay in filing an appeal was subject of consideration in plethora of precedent decisions of this Court and the Hon'ble Supreme Court. Suffice to note few land mark decisions:
4.1. In Perumon Bhagvathy Devasom (supra) and N.Balakrishnan (supra), the Supreme Court considered what is meant by 'sufficient cause' and the scope of exercising of discretion in condoning delay.
PNR,J & JSR,J WP No.35220 of 2022 4 4.2. In Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai1, the Hon'ble Supreme Court held as under:
"14. ...The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation.
15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and- fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
16. In Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361] this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition: (AIR pp. 363-64, para 7) "7. In construing Section 5 (of the Limitation Act) it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of 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 decree- holder 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 light-heartedly 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."
17. In Collector (LA) v. Katiji [(1987) 2 SCC 107] this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108-09, para 3) "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of courts. It is common 1 (2012) 5 SCC 157 PNR,J & JSR,J WP No.35220 of 2022 5 knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:
(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so....."
18. In N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], the Court went a step further and made the following observations: (SCC pp.
127-28, paras 9, 11 & 13) "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
PNR,J & JSR,J WP No.35220 of 2022 6 xxx
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
xxx
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
(emphasis supplied) 4.3. On review of precedent decisions in Esha Bhattacharjee v.
Raghunathpur Nafar Academy2 the Supreme Court summarized the principles to be applied while deciding a condonation of delay petition as under:
2(2013) 12 SCC 649 PNR,J & JSR,J WP No.35220 of 2022 7 "21. From the aforesaid authorities the principles that can broadly be culled out are 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic 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.
21.2. (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 fact- situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (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.
21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to 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.
21.9. (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.
21.10. (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.
21.11. (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.
21.12. (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.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
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22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non- challant manner requires to be curbed, of course, within legal parameters."
(emphasis supplied)
5. From the precedent decisions, it is discernible that the Court is vested with power to condone the delay in filing an appeal if sufficient cause is shown by the litigant. While assessing the reasons for delay and the quantum of delay, Court should adopt liberal approach. It is not necessary that person should explain every day's delay in literal sense. When substantial justice and technical considerations are pitted against each other cause of substantial justice should be preserved. Any course of action adopted by the Court must serve the ends of justice. Once the Court is convinced that delay is properly explained and is non-deliberate, court must lean in favour of condoning the delay.
6. However, while exercising its discretion to condone delay, the Court is required to see whether delay is satisfactorily explained;
PNR,J & JSR,J WP No.35220 of 2022 9 there was no deliberate, wanton delay in prosecuting the litigation;
litigant was not resorting to dilatory tactics; whether explanation lacks bona fides of litigant. The Court should also keep in mind the prejudice that may be caused to decree holder. The right accrued to decree holder by lapse of time due to his own failure to prosecute legal remedy within reasonable time cannot be lightly ignored. When the delay is long, as in this case, the scrutiny is rigid and burden is heavy on the litigant to explain every aspect of his conduct and behaviour, fairly and freely during the interregnum. Such assertions should not be fanciful.
7. From the order of the Appellate Tribunal, it is noticed that except for stating that the Advocate did not inform the appellants regarding adjournment of case and progress of case, they have not shown any bona fide, reason why they have not prosecuted the O.A.
when they were well aware that they defaulted in repayment of the amount borrowed and the Bank was proceeding against them for recovery of the loan. From the docket proceedings of the Tribunal as well as Appellate Tribunal, it is seen that at the instance of petitioners 1 and 2, who are borrowers, the matter underwent 12 adjournments from 09.10.2006 to 18.12.2008 for filing written statement, but they did not file written statement. While blaming the Lawyer in their applications before the Tribunal and before the Appellate Tribunal, petitioners even failed to inform the Tribunal who PNR,J & JSR,J WP No.35220 of 2022 10 was the Lawyer and what steps were taken to complain against the Lawyer when he was not informing them about the case and not prosecuting the case before the Tribunal. Being the respondents before the Tribunal, it is their bounden duty to follow up the matter through their Advocate or otherwise. It is surprising to note that though the case was pending from the year 2005 till 2014, petitioners never bothered to verify the status of the case and keep quiet for a further period of five years even after its disposal and go before the Tribunal by filing application to set aside the ex parte order on the ground that they came to know the result of O.A., only when demand notice was issued in the year 2018. No due diligence is shown by the petitioners in prosecuting the litigation.
8. For the aforesaid reasons, we are of the opinion that the Tribunal as well as Appellate Tribunal on due consideration of the matter and noting the conduct of the parties, dismissed the Appeal.
No cause is made out for interference of this Court in exercise of power of judicial review under Article 226 of the Constitution of India.
Writ Petition is accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed.
_____________________ P.NAVEEN RAO, J ______________________ J.SREENIVAS RAO, J Date: 08.09.2022 Kkm PNR,J & JSR,J WP No.35220 of 2022 11 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SRI JUSTICE J.SREENIVAS RAO WRIT PETITION NO. 35220 OF 2022 Date: 08.09.2022 kkm