Delhi High Court
Shri Gaurav Sharma vs Canara Bank on 28 January, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 24/2009
Date of Decision: January 28, 2010
SHRI GAURAV SHARMA ..... Appellant
Through: Mr. Sunil Bainsla, Advocate.
versus
CANARA BANK ..... Respondent
Through: Mr. J.P.Gupta, Adv. for
Bank.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral)
CM APPL.2166/2009 (delay) in RSA 24/2009
1. A suit for recovery of Rs.2,77,848/- along with interest @
16.25 % per annum was filed by the Respondent Bank against
the appellant and two other defendants . Appellant happened
to be the guarantor of the principal borrower, defendant No.1.
Defendants No.1 and 2 did not contest the suit and were
proceeded ex-parte. Appellant contested the suit and suffered
a decree for the suit amount alongwith pendent lite and future
interest @ 9% per annum along with the other defendants.
2. Appeal against the said judgment and decree was dismissed
by the Appellate Court vide judgment and decree dated
3.08.2006.
3. This appeal has been filed by the appellant on 17.01.2009.
The period of limitation for filing an appeal to this court is 90
days from the date of the impugned judgment and decree of
the Appellate Court. Therefore, there is a delay of around 27
months in filing this appeal.
4. In the application, the appellant has urged that there is a delay
of 77 days in filing the second appeal which is an incorrect
information provided to the Court.
5. As per the averments contained in the application, appellant
firstly engaged the services of Mr. V.V. Singh Advocate,
who had been contesting the case on his behalf and he was
under the instructions of the counsel not to appear before the
First Appellate Court. However, subsequently, on Mr.
Singh's showing his inability to defend the appellant, he
changed his counsel and appointed Mr. O.P. Bharti Advocate
to represent his case. He had been appearing on behalf of the
appellant before the first appellate court regularly. Appellant
has alleged that he came to know of the dismissal of his
appeal only in December, 2008 when his 1/3rd salary was
deducted by the department and it was on inquiry, he came to
know that his appeal had been dismissed. Thereafter, he
engaged the services of Mr. Sunil Bainsla Advocate now
representing the appellant in this appeal. It was on
12.01.2009, that he was told by Mr. Bainsla that his appeal
had been dismissed. Thereafter appeal was prepared and filed.
6. Mr. Sunil Bainsla, learned counsel for the appellant has
submitted that under the circumstances, since appellant was
not having the knowledge of the dismissal of the appeal and
he came to know of it only in December, 2008, rather on
12.1.2009, he filed his appeal within the period of limitation.
He has submitted that there were sufficient and good reasons
for the appellant in not filing the appeal within the period of
limitation and, therefore, he was entitled to condonation of
delay in filing the appeal and his appeal should be heard and
decided on merits.
7. Mr. J.P. Gupta, learned counsel for the respondent Bank has
submitted that appellant was throughout being represented by
his counsel who was present on the date when the Appellate
Court's judgment was pronounced and therefore, the appellant
knew the fate of his appeal on the date when it was
pronounced by the Appellate Court. He has argued that
appellant has failed to disclose any sufficient cause for
condonation of delay in filing the appeal.
8. On 3.08.2006 when the impugned order, dismissing the
appeal of the appellant was pronounced, the counsel for the
appellant was present. In the normal course of business,
counsel was required to inform his client about the fate of the
appeal. He must have informed the appellant accordingly,
which fact seems to have been deliberately not disclosed by
the appellant in the application.
9. The appellant was required to keep in touch with his counsel
to know the proceedings of the appeal and its ultimate result.
It is not acceptable that appellant after filing the appeal did
not try to contact his counsel to know the fate of the appeal
for about 2½ years.
10. Be that as it may, the application is not enclosed with the
Affidavit of Mr. O.P. Bharti in whose presence, the impugned
judgment was pronounced. Admittedly, the appellant has not
taken any action or filed any complaint against Mr. Bharti for
his indifferent attitude in not disclosing the fate of the appeal
to the appellant. Allegations as levelled against Mr. Bharti
seem to be deliberate with a view to make out a ground for
condonation of delay in filing the appeal. The delay is not of
few days but is of about 27 months. Appellant was required
to explain each and every days delay in filing the appeal.
11. It is pertinent that this application was prepared by Mr. Sunial
Bainsla Advocate for the appellant somewhere in October,
2008 whereas according to the appellant, he came to know
about the impugned order only in December, 2008. If the
appellant did not know the fate of the appeal till December,
2008 it goes unexplained as to how an application for
condonation of delay could be drafted and prepared by the
counsel in October, 2008 i.e. about two months prior to the
appellant gaining knowledge of the dismissal of the appeal.
12. It is also pertinent that the appeal was ready for filing in
October, 2009 itself. There was a subsequent change in the
date, when the appeal actually was filed in the Registry. If
the averments of the appellant contained in the application are
accepted, then Mr. Sunil Bainsla could not have prepared the
appeal along with this application in October, 2008 specially
when his services were engaged by the appellant only in
December, 2008 or early January, 2009. It is noted that
appellant has not disclosed the date on which he engaged Mr.
Sunil Bainsla to file the instant appeal.
13. In view of my discussion as above, it is clear that appellant
has made every endeavour by hook or by crook to make out a
ground for condonation of delay in presenting the appeal. He
is caught in his own web of false statement of facts made on
record.
14. Appellant, to my mind, has not been able to satisfy the court
that the appeal could not be filed in time due to sufficient
cause and is attributable to the conduct of his previous
counsel. This also explains as to why the appellant did not
take any action against the erring counsel Mr. O.P. Bharti in
mishandling his brief.
15. Hence, I find no merit in the application, the same is
accordingly dismissed.
RSA 24/2009
The appeal being barred by period of limitation is hereby
dismissed.
ARUNA SURESH
(JUDGE)
JANUARY 28, 2010
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