Delhi High Court

Sh. Kulvinder Singh & Another vs State Bank Of India on 19 December, 2008

Author: Sudershan Kumar Misra

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO No.107/2004



                                     Date of Decision : 19-12-2008



Sh. Kulvinder Singh & another                           ......Appellants
                             Through :     Mr. J.C.Mahindro ,Adv.


                                Versus


State Bank of India                                  ......Respondent
                               Through : Mr. Rajesh Kumar, Adv.


CORAM :

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                   Yes

2.    To be referred to the Reporter or not?         Yes

3.    Whether the judgment should be reported
      in the Digest?                                 Yes



SUDERSHAN KUMAR MISRA, J.

1. The respondent, State Bank of India instituted a suit for

recovery of Rs.3,33,854.52 against the appellants Sh. Kulvinder Singh

and Smt. Harjeet Kaur. On 3.12.2001, the trial court passed an ex

parte decree against the appellants who were the defendants in that

suit. After about 2 years, i.e., on 24.11.2003, the defendants moved

an application under Order 9 Rule 13 CPC for setting aside the exparte

decree. They also moved an application under Section 5 of the

Limitation Act for condonation of delay in moving the application under

Order 9 Rule 13 CPC. There the appellants contended that they were

not aware of the passing of the decree because they were away to

Ludhiana and that they came to know of this fact only on 15.11.2003

from the officials of the plaintiff bank. Thereafter, defendant No.1

inspected the court file on 17.11.2003 and moved the application

under Order 9 Rule 13 on 24.11.2003. According to the appellants,

there was no intentional or deliberate lapse on their part in moving the

applications for restoration and condonation of delay. The respondent

traversed these assertions and contended that the applications failed

to disclose relevant material particulars since it is not stated how long

the appellants remained in Ludhiana or even the name of the

employee of the respondent bank who had allegedly informed them of

the passing of the ex parte decree. After hearing the matter, the

learned Trial Court declined the prayer of the appellants and dismissed

the applications. Whilst doing so, learned Additional District Judge was

of the view that the entire effort of the appellants seems to be to

prolong the proceedings as long as possible by avoiding appearance

and that only flimsy grounds are being put forth for setting aside the

decree. It also held that even in the application under Section 5 of the

Limitation Act, no good ground for condonation of delay in moving the

application under Order 9 Rule 13 CPC has been made out. The

assertion of the appellant to the effect that they came to know about

passing of the decree only on 15.11.2003 has also been disbelieved.

In addition, learned trial court has taken a view that if the appellants

had changed their address for any reason, they were supposed to

inform the bank about this immediately and it cannot be said that the

defendants/appellants were not aware of the consequences of

non-payment of the bank‟s installments. For these reasons, the

learned Additional District Judge refused to condone the delay in filing

the application under Order 9 Rule 13 CPC and consequently, both the

applications under Section 5 of the Limitation Act as well as the

application under Order 9 Rule 13 CPC were dismissed. Before this

court, counsel for the appellants has urged one main ground, which is,

that in fact the appellants were never served with summons in suit

because the address furnished by the respondent/plaintiff to the trial

court was not correct. It is also averred that as a matter of fact, no

loan at all was disbursed to the appellants and therefore, there could

be no obligation on the part of the appellants/defendants to have kept

the bank apprised of any further change in their address. It is also

averred that as a matter of fact, the categorical statement made by

the respondent/plaintiff that the address of the appellants mentioned

in the plaint was correct, was palpably false, and that therefore the

exparte decree which came to be passed behind the back of the

appellants/defendants, could not be sustained. Counsel for the

appellants further contends that as a matter of fact, learned Trial Court

overlooked its own record where, on 3.8.2001, the reports of the

postman and of the process server are to the effect that the house was

lying locked and that the addressee was not available, along with

another report on 25.8.2001 to the effect that no such person was

available at that address. A similar report is stated to have been given

on 7.9.2001 also. It is submitted that looking to the nature of the

reports submitted by the postman as well as the process server of the

court, the learned trial court ought not to have relied merely on the

statement of the plaintiff/respondent to the effect that the address

furnished by it in the suit was correct. According to counsel for the

appellants, even the affixation had been done at places where the

appellants did not reside. In addition, defendant No.2 in the suit is

stated to have already died. It is further urged before this court by the

learned counsel for the appellants that the possession of the Maruti

Vehicle was not taken by his client because it was not in a satisfactory

condition. In response to a direction given by this court, the appellant

Kulvinder Singh also filed an affidavit on 12.5.2004 stating that he had

not taken delivery of any car on the basis of the alleged loan for which

the suit in question had been filed. He has also stated that he did not

own any car as on that date and that there is no hypothecation made

in respect of any car which could be connected to him. The respondent

bank had sued the defendants/appellants for recovery of money stated

to be owed by them to the bank. One of the oldest principles of civil

law is that the creditor must seek out the debtor. It was for the

plaintiff to give the correct current address of the defendants when it

instituted the suit claiming that they owed money to the plaintiff. To

my mind, the pertinent facts with regard to the due service in the suit

as well as those mentioned in the application under Section 5 of the

Limitation Act are such that the matter could not be disposed of by the

learned court below without taking evidence in the matter.

Furthermore, it has been held by the Supreme Court in the Case of

Collector, Land Acquisition, Anantnag and another Vs. Mst.

Katiji and others, AIR 1987 SC 1353 as follows:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 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 realized 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 consideration 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

2. The court has further held that what is required is a justice

oriented approach from this perspective. Looking to their averment

that the delivery of the car was not taken and that the loan was also

not disbursed, prima facie, it is obvious that the appellants/defendants

could not stand to benefit by resorting to delay. On the contrary,

avoiding court process in such a matter would obviously visit the

appellants with serious consequences. The court ought not to take a

pedantic approach in such matters and what is necessary is to see that

litigants are not deprived of an opportunity to obtain substantial justice

on the merits of their case. Here, the appellants/defendants alleged

that in fact the loan was never disbursed and that the delivery of the

car for which the loan was applied, was also not taken by them. In