Maharani Creations (India) Pvt. ... vs Commerz Bank A.G. & Others
1999 Latest Caselaw 699 Del

ORDER

DR. M.K. Sharma, J.

C.M. NO. 4059/1998

1. By this order I propose to dispose of the application registered as C.M. No. 4059/98 filled by the petitioner praying for condensation of delay in filing the aforesaid petition.

2. In the aforesaid petition, the petitioner has sought for setting aside the orders dated 24.10.1996 and dated 22.8.1998 passed by the Additional District Judge in suit No. 423/1993.

3. The petitioner instituted the aforesaid suit for recovery of Rs.4,50,000/- against the respondents which was registered as Civil Suit No.328/1988. The suit was initially instituted in this court which was, however, transferred to the District Court after pecuniary jurisdiction of the High Court was raised to Rs. Five Lakhs.

4. During the pendency of the aforesaid suit, respondent No. 1 moved an application under Section 20 CPC seeking for dismissal of the suit qua respondent No. 1 for want of territorial jurisdiction. Respondent No. 1 in the said application stated that the suit was not maintainable against the respondent No. 1 as it is situated outside the territorial jurisdiction of Delhi Courts and also because the petitioner, as plaintiff, has failed to seek leave of the Court under Section 20(b) CPC. The aforesaid application was taken up for consideration by the Additional District Judge. He considered the provisions for Section 20 CPC, particularly the provisions of Clause-(b) thereof and came to the conclusion that the defendant No. 1 who is respondent No. 1 in the present case, neither resides nor carries on business in India either at the time of institution of the suit or prior to that and, therefore, the jurisdiction of Delhi courts is otherwise ousted and, therefore, no leave could be granted for institution of the suit against defendant No. 1 even though rest of the defendants may reside and work for gain within the jurisdiction of the courts in Delhi courts. The application was thus, allowed and suit qua defendant No. 1 was dismissed.

Thereafter, the petitioner filed an application for review of the aforesaid order under Order 47 Rule 1 CPC. However, the said application was barred by limitation and, therefore, the application under Section 5 of the Limitation Act for condensation of delay was also filed before the Additional District Judge.

5. After hearing the parties, the Additional District Judge by his order dated 22.8.98 dismissed both the pplications holding that no sufficient cause has been made by the plaintiff/petitioner for condensation of delay in filing the plication for review under Order 47 Rule 1 CPC.

6. Being aggrieved by the aforesaid orders the present petition has been preferred by the petitioner.

7. It is an admitted position that the present petition is within time from the date of the order dated 22.8.98 but is barred by time so far order dated 24.10.1996 is concerned. Accordingly, an application has also been filed by the petitioner praying for condensation of delay in filing the present revision petition as against the order dated 24.10.1996 passed by the Additional District Judge, dismissing the suit qua defendant No. 1.

8. I have heard the learned counsel appearing for the parties and have considered the records for the purpose of deciding the application under Section 5 of the Limitation Act.

9. By order dated 24.10.96, the Additional District Judge has held that the suit qua defendant No. 1 is liable to be dismissed as the Delhi Courts have no Territorial Jurisdiction to entertain the suit qua defendant No. 1 as the said defendant No. 1 neither resides nor carries on business in India either at the time of institution of the suit or prior to that. It appears that while coming to the aforesaid conclusion the Additional District Judge considered the ovisions of section 20(b) of the Code of Civil Procedure. It is not reflected from the said order whether the Additional District Judge considered and took note of the provisions of Clause (C) of Section 20 CPC. There appears to be an arguable case on behalf of the petitioner regarding the conclusion arrived at by the Additional District Judge holding that the Delhi courts have no territorial jurisdiction to entertain and decide he suit.

10. Be that as it may, in the application filed by, the petitioner under Section 5 of the Limitation Act it is stated that Managing Director of the petitioner engaged Sh. J.L. Bhanot Advocate to conduct the aforesaid suit in the month of February,1988 and that during the pendency of the aforesaid suit the said counsel lost his mental equilibrium and later on he expired, after which the said Managing Director engaged Mr. Ajay Goswami, Advocate to conduct her case before the Additional District Judge. It is further stated that the Managing Director herself fell sick in the month of September,1996 and could not contact her counsel till December,1996 and then when she contacted her lawyer, she came to learn that the name of respondent No.1 has been deleted from the array of the parties by the order passed by the Additional District Judge, on 24th October,1996. Her counsel at that stage, advised her that nothing would be achieved by filing any petition and/or appeal as against the order dated 24.10.96 and also stated that respondent No.1 may not be necessary party for adjudication. Relying on the said advice, given to her by her counsel, she did not proceed to file either a revision petition in this court or a review application before the Additional District Judge. Subsequently, however, she found that her lawyer was not informing her about progress of the case and that he was not performing to her expectations and so she contacted the present counsel in the month of November,1997.

11. After going through the records, the present counsel advised the petitioner to move an application for review of the order dated 24.10.96. The said review petition filed by the petitioner was also barred by limitation and accordingly an application under Section 5 of the Limitation Act was also filed. The said application was, however, dismissed by the Additional District Judge by the order dated 2.8.98, which is also under challenge in the revision application filed before this court. The petition as against the aforesaid order is within the period of limitation.

12. The petitioner should or could have preferred a revision petition against the order dated 24.10.96. The said revision petition could not be preferred by the petitioner as the Managing Director of the petitioner was lying ill till December, 1996 and thereafter she was advised that it is not required to proceed in the higher forum as against the aforesaid order dated 24.10.96.

13. The present counsel of the petitioner also advised her to file the review petition before the Additional District Judge.

14. In the backdrop of the aforesaid facts, I am required to ascertain as to whether there is sufficient cause for condensation of delay as sought for by the petitioner in the present case.

15. Mr. Sharma appearing for the petitioner submitted that the delay in filing the revision petition as against the order dated 24.10.96 is bona fide and that there was no deliberate intention on the part of the petitioner to approach the court beyond the period of limitation. In support of his contention, praying for condensation of delay, he relied upon the decision of the Supreme Court in N. Balakrishan Vs. M. Krishnamurthy .

16. Mr. Kaul appearing for respondent No.1 and Mr. D.R. Mahajan appearing for respondents 3 and 4, however, submitted that negligence and latches on the part of the Managing Director of the petitioner is writ large on the face of the record. In support of their contentions the learned counsel relied upon the decision in Sali Dutta Vs. T.M. & M.C. Pvt. Ltd. and also the decision in Shalimar Paints Ltd. Vs. Smt.Ashoka Deb and Another reported in 1995 A.I.H.C. 3516 and also the decision in State Bank of India Vs. M/s. Plastichem, Satna reported in AIR 1992 MP 142 and also the decision in the State of Assam Vs. Gobinda Paul reported in AIR 1991 Gau 104. It was also submitted by them that neither any document nor any explanation has been furnished to show as to what was the nature of the illness of the Managing Director of the etitioner company which incapacitated her to move till December,1996.

17. The revision petition is admittedly within time as against the subsequent order. The petitioner could have preferred the revision petition asagainst the order dated 24.10.96 at that stage only. The petitioner, however, chose to prefer a review application and waited till its outcome and now a combine petition is filed challenging both the orders in the present petition.

18. It is stated that the Managing Director of the petitioner Company was ill till December, 1996 and that there was mistaken advise on the part of her lawyer for which reason, she did not chose to prefer either any revision petition or any review petition. With the change of the lawyer and on his advise, she preferred a review application. The Managing Director of the petitioner company is a widow and was solely dependent on the advice of her lawyers. She was persuaded to move an application for review and that also after the period of limitation had expired. I am satisfied that there was no lapse on her part and the delay in approaching the court appears to be bona fide. In the case of N. Balakrishnan (supra) the Supreme Court has held that the rules of limitation are not meant to destroy the right of parties and they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. In the said case the Supreme Court also held that in every case of delay there can be some lapse on the part of the litigant concerned but that alone is not enough to turn down his plea and to shut the door against him. In the matter of pursuing a legal battle, the litigants generally go by the advise given by their lawyers and their opinion is accepted more or less, which guides their course of action.

19. In Mata Din Vs. A. Narayanan the Supreme Court has held that a delay occasioned by a mistaken advice of counsel may be accepted by the court as a stification in extending the time in a smuch as the error of the counsel was tainted by any mala fide motive for a mistake of counsel cannot be treated as sufficient ground to condone the delay. A case for condensation of delay is always to be decided on the facts of each case after ascertaining as to whether circumstances have been made out or not which constitutes sufficient cause for condensation of delay.When the case in hand is considered from the aforesaid angle. It is apparent that the factors like gross negligence or misconduct cannot be attributed to the litigant or the Present counsel.

20. In Collector, Land Acquisition, Anantnag & Another Vs. Mst. Katiji and Others their Lordships of the Supreme Court have held that a justice oriented approach has to be adopted while dealing with an application under Section 5 of the Limitation Act and that the court should see that refusing to condone delay can result in meritorious matters being thrown out at the very threshold and cause of justice being defeated.

21. Reference may also be made to another decision of the Supreme Court in Rakesh Kumar Jain Vs. Devender Singh Mehta & Another wherein it was held that while dealing with an application seeking for condensation of delay under Section 5 of the Limitation Act or for setting aside of abatement under Rule 19 of Order 22 CPC, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. It was also held that hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided.

22. On consideration of the entire facts and circumstances of the case, I am of the considered opinion that the petitioner has been able to make out sufficient case for condensation of delay within the meaning of Section 5 of the Limitation Act. Accordingly, the delay in approaching this court as against the order dated 24.10.96 is held to be bona fide and accordingly the application stands allowed. The delay in filing the petition as against the order dated 24.10.96 is condoned. Petition shall be heard on merit.

C.R. No. 1061/1998

Put up on 1.10.1999.