Indian Institute Of Science vs National Building Construction ...
2010 Latest Caselaw 1069 Del

                                                       REPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           FAO No.329/2006


                                Date of Decision: February 24, 2010


       INDIAN INSTITUTE OF SCIENCE           ..... Appellant
                     Through Mr. Sunil Goyal, Advocate with
                     Ms. Kavitha K.T., Advocate

                     versus


       NATIONAL BUILDING CONSTRUCTION CORPORATION
       LIMITED                           ..... Respondent
                    Through Mr. Arvind Minocha, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the 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

REKHA SHARMA, J.

The appellant before me is the Indian Institute of Science. It

had filed a suit against the respondent, namely, National Building

Construction Corporation Limited for the recovery of a sum of

Rs.12,16,443/-. The suit was instituted in this Court, i.e. the High

Court of Delhi on October 24, 1992. In response to the suit, the

respondent not only filed written statement and thereby disputed the

claim of the appellant but also raised its own claim against the

appellant for a sum of Rs.16,65,028.34P. That was done by way of

counter-claim which was registered as C.C. No.2498 of 1994. The

appellant was represented in the suit as well as in the counter-claim

through a counsel but only till April 05, 2000. Thereafter, none

appeared for the appellant. Hence, on September 19, 2000 the suit

was dismissed in default and in the counter-claim, the appellant was

proceeded ex-parte. The counter-claim was at the stage of final

hearing when it was transferred to the Court of the District Judge at

Tis Hazari, Delhi, as the pecuniary jurisdiction of the High Court in

the meanwhile got raised to Rs.20 lacs and the matter, thus, was to be

heard at the level of District Judge/Additional District Judge. The

learned Additional District Judge who heard the matter vide his order

dated March 20, 2004 decreed the counter-claim of the respondent

for a sum of Rs.16,65,028.34P. and also awarded interest @ 12% per

annum on that amount from the date of institution of the

counter-claim till the date of realization, along with cost of the

counter-claim.

The appellant, in the meanwhile, remained blissfully unaware of

the dismissal of its suit and the decree passed against it in the

counter-claim of the respondent. It says that it came to know about

the decree against it only in the beginning of the year 2006 in a

meeting held between its Registrar and the officers of the respondent.

Consequent thereto, it made a request to the officers of the

respondent to furnish particulars of the decree which were made

available to it in the middle of 2006. Thereafter, in the first week of

July, 2006 it contacted a Supreme Court lawyer through whom it

came to know the details of the decree and further came to know that

its' own suit for the recovery of Rs.12,16,443/- was dismissed in

default on September 19, 2000. Armed with this information, its

officers visited Delhi in the middle of August, 2006 to discuss the

matter with a local lawyer. Finally, a decision was taken to file an

appropriate application for restoration of the suit and for setting-aside

of the ex-parte decree. Hence, three applications were filed on

October 03, 2006; one under Order 9 Rule 7 read with Section 151 of

the Code of Civil Procedure (hereinafter called the Code) for

setting-aside of the order dated September 19, 2000 dismissing the

suit in default; the other under Order 9 Rule 13 of the Code for

setting-aside of the ex-parte decree dated March 20, 2004 passed in

the counter-claim of the respondent, and the third under Section 5 of

the Limitation Act for condonation of delay in filing the said two

applications. The learned Additional District Judge who heard the

applications dismissed the same vide order dated October 12, 2006

holding that they were filed much after the expiry of the period of

limitation and that the application for condonation of delay did not

disclose sufficient ground to condone the delay. It is this order of

October 12, 2006 against which the present appeal has been

preferred.

The only reason that has been put-forth by the appellant in not

prosecuting the suit and in not contesting the counter-claim of the

respondent after April 05, 2000 is the frequent changes in its

administrative set-up at the level of the Registrar and in its Estate

Office at the level of Project Engineer-cum-Estate Officer from the

date of institution of the suit in the year 1992 till the year 2006,

resulting in lack of supervision and follow-up with the Advocate in

Delhi. Reference in this regard was made to the contents of the

applications filed for setting-aside of the order dated

September 19, 2000 dismissing the suit in default and for

setting-aside of the ex-parte decree dated March 20, 2004. As per the

applications, Shri P.S.Venkateswaran was the Registrar when the case

was instituted in the year 1992. He retired in the year 1995 and on

his retirement, Prof. B.R.Srinivasmurthy took charge in August, 1995

and from him Mr. R.G.Nadadur took over in October, 1998.

Mr. R.G.Nadadur left the Institute in 1999. He was succeeded by

Mr. B.V.Ramakrishna who retired in May, 2000 and upon his

retirement, Dr. Uday Balakrishnan took charge. He continued till

July, 2006. As regards the Estate Office, Mr. Munivenkataswamy was

the Project Engineer-cum-Estate Officer at the time of filing of the

suit. He was succeeded by Mr. Chikkappa in the year 1992 and from

him Mr. Gururaja took over in the year 1998. Thereafter,

Mr. Nagaraja took charge in the year 2003. However,

Mr. Nagaraja left the Institute and in his place, Mr. Rajashekhar had

taken the charge in December, 2004 and from him,

Mr. G.Muninarayanaswamy took charge in the year 2006.

The question which arises for consideration is, whether the

details as disclosed in the applications with regard to the change of

officers in the administrative set-up and in the Estate Office of the

appellant are such that can be said to constitute sufficient grounds for

condoning the delay in filing the applications and justify

non-appearance of the appellant after the year 2000?

As noticed above, it was only after April 05, 2000 that the case

remained unrepresented from the side of the appellant. That being

so, any reference to Shri P.S.Venkateswaran, Prof.B.R.Srinivasmurthy

& Shri R.G.Nadadur is irrelevant for so long as these officers held the

post of Registrar, there was no default in appearance. It was during

the tenures of Shri B.V.Ramakrishna and Dr. Uday Balakrishnan that

the case remained unattended. The appellant thus was liable to

explain inaction or lack of supervision on the part of these officers.

It is normal practice in any administrative set-up that when an officer

is replaced by another, handing and taking over the charge takes

place and all important files are entrusted by the officer demitting the

office to his successor. Is it that Shri B.V.Ramakrishna did not hand

over the case to Dr. Uday Balakrishnan, or is it, Dr. Uday

Balakrishnan failed to supervise the case diligently and effectively? In

the absence of any pleading as to what happened and what went

wrong when these two officers were working as Registrars, one can

only assume that either such a procedure was not followed in the

office of the appellant, or if it was followed, then the reason for not

attending to the case cannot be mere change in the Registrars. In any

case, Dr. Uday Balakrishnan remained as Registrar from the

year 2000 till 2006. Did he have no inkling of the case during these

years and, if not, why not? The applications are totally silent as to

what happened and one is unable to find out the real reason.

Likewise, there is no explanation why the Project

Engineer-cum-Estate Officers of the Institute who held the post from

time to time between the years 1992 to 2006 did not attend to the

case. It appears to me that either the officers who took charge did

not bother to pursue the case or there was a total chaos and

mismanagement, both in the administrative set-up and Estate Office

of the appellant-Institute. In either case, the inaction on their part is

inexcusable.

Having said so, let me for the sake of argument assume that the

persons who took charge as Registrars or Project

Engineer-cum-Estate Officers, for any reason were not aware of the

pendency of the case but then what explanation does the appellant

has for not moving swiftly after it came to know in the beginning

of the year 2006 that the counter-claim of the respondent had been

decreed. The truth is that even after coming to know of this fact, it

did not swing into action. There was no sense of urgency on its part.

It was just not prepared to come out of its slumber. All that it did was

to seek details of the decree from the respondent and waited for that

information to come which was received in the middle of the

year 2006 but even then, it was not prepared to shed its lethargy for it

was only in the middle of August, 2006 that its officers went to Delhi

and two months thereafter, the applications were filed in October,

2006. No doubt, the Apex Court has in number of judgments said

that the Courts should make endeavour to do substantial justice by

disposing of matters on merits and not get mired in technicalities,

such as delay etc., but it also says that a party seeking restoration of a

suit or an appeal has to show sufficient cause in not attending to the

case. The facts of the present case do not, in my view, constitute

sufficient cause. It is a case of total inaction, indifference and

callousness. The appellant remained in a state of limbo for 6 long

years and even after it had come to know about the fate of its suit and

the decree against it, it was in no hurry.

The details, as noticed above, go to indicate that there has been

a complete lack of supervision in the office of the appellant and there

appeared to be no accountability at any level. The appellant must be

made to suffer for its lapses. There is no merit in the appeal. The

same is dismissed.

REKHA SHARMA, J.

FEBRUARY 24, 2010 ka