Surya Kiran Maintenance Society vs Shiv Sharma And Another
2010 Latest Caselaw 3226 Del

21
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      RFA 57/2009
                                         Date of Judgment 13 July, 2010

SURYA KIRAN MAINTENANCE SOCIETY                        ..... Appellant
               Through: Ms. Divya Jain, Adv.
                    versus

SHRI SHIV SHARMA & ANR.                               ..... Respondents
               Through:         Mr. Kanwaljit Singh, proxy counsel, Adv.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

       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

G.S.SISTANI, J (ORAL):

CM.No.2800/2009

1. This is an application filed by the appellant under Section 5 of the

     Limitation Act seeking condonation of delay of 605 days in filing the

     present appeal.

2. The appellant had filed a suit for recovery against the respondents

     which was dismissed by a judgment and decree dated 13.3.2007. It is

     pointed out by counsel for the appellant that defendant No.1

     (respondent No.1 in the appeal) did not appear before the trial court.

     The suit was contested by defendant No.2 (respondent No.2 herein

     Bank of Baroda).        In the appeal also respondent No.1 is not

     represented.
 3. Counsel for the appellant submits that the certified copy of the

  judgment and decree dated 13.3.2007 was obtained on 19.3.2007.

  While relying on para 3 of the application counsel for the appellant

  submits that the appellant took time in deciding whether appeal is to

  be filed or not. She submits that no final decision could be taken until

  mid January, 2008. She submits that only on 15.1.2008, counsel was

  requested by a letter dated 15.1.2008 to prepare the appeal and send

  the same to them. Copy of the communication received by the counsel

  has been annexed along with the application as annexure `A'.         She

  submits that thereafter the appeal could not be filed as the counsel

  who was looking after the matter had left for London in early February

  of 2008.   Thereafter a reminder was issued by the appellant to the

  counsel on 28.4.2008 whereafter the counsel started searching for the

  file which had apparently got misplaced during shifting of the office of

  the advocate in the month of May-June, 2008. It is submitted that files

  were only traced in December, 2008 and thereafter the appeal was

  filed on 10.2.2009.   It is contended that the delay in filing the appeal

  was for bona fide and reasons beyond the control of the appellant.

4. The application for condonation of delay is opposed by the counsel for

  respondent No.2 on the ground that the delay was caused on account

  of inaction and negligence on the part of the appellant. It is submitted

  that the judgment and decree was obtained on 19.3.2007 and para 3 of

  the application shows that from March, 2007 uptil January, 2008, the

  appellant was not sure as to whether an appeal was to be filed or not

  and it was during this period that the limitation for filing the appeal
   expired. It is contended that there is no satisfactory explanation as to

  why appellant took so long in deciding whether the appellant was to be

  filed or not.

5. I have heard learned counsel for the parties and perused the

  application for condonation of delay as also the annexures filed along

  with the application.     Admittedly the suit of the appellant was

  dismissed by judgment and decree dated 13.3.2007.          The certified

  copy was obtained on 19.3.2007 which is evident from the stamp on

  the judgment at page 284 of the paper book.          Para three of the

  application for condonation of delay would show that the appellant did

  not take necessary steps for filing the appeal within the period allowed,

  on account of the fact that they were deciding whether an appeal is to

  be filed or not.    The appellant society informed their counsel vide

  communication dated 15.1.2008 to file an appeal which is evident from

  the letter which reads as under:

     "No.SKMS/Acct/2008/0018             Dated 15th Jan 08

     To
     M/s C & C Associates
     509, 5th Floor
     Word Trade Centre
     Barrakhamba Road
     New Delhi-110001


     Sub: In the matter CS(OS) No.435 of 2004 titled as Surya
            Kiran Mainatenance Society vs. Shiv Kumar Sharma &
            Anr.
     Sir,
      This has reference to the order passed by the Ld. District Judge
     in the captioned matter. After consulting our senior officers and
     discussing the matter internally, we have decided that the order
     dated 13.3.07 be challenged in High Court of Delhi.
     Your are requested to kindly prepare the appeal and send us
     the same at the earliest.
     Should you have any queries, please feel free to revert.



     Yours sincerely,
     SURYA KIRAN MAINTENANCE SOCIETY


     (Col. Vinod Sengal)
     ESTATE MANAGER"


6. By another communication dated 28.4.2008 the appellant reminded

  the counsel to file the appeal. However, the appeal was filed only on

  28.2.2009.

7. Bare reading of the letter dated 15.1.2008 would show that the

  appellant took almost ten months to decide as to whether an appeal is

  to be filed or not. After 15.1.2008 the appeal could not be filed on the

  ground that counsel who was dealing with the case had left the firm

  and thereafter files were misplaced.

8. In the case of P.K. Ramachandran Vs. State of Kerala & Anr.

  (1997) 7 SCC 556, the Supreme Court has held that an essential pre-

  requisite of exercising discretion to condone the delay is that the Court

  must record its satisfaction that the explanation for delay was either

  reasonable or satisfactory.

9. While dealing with an application for condonation of delay under

  Section 5 of the Limitation Act, the Court must bear in mind two
   important considerations. Firstly, the expiration of limitation for filing

  an appeal gives rise to a legal right to a decree-holder to treat the

  decree as binding between the parties and this right should not be

  lightly disturbed. Second, if sufficient cause is shown for condonation of

  delay, the delay should be condoned. It has been repeatedly held by

  the Supreme Court of India that the words "sufficient cause" should

  receive a liberal construction so as to advance substantial justice. In

  the same breath, it has been held that the discretion should be

  exercised. When there is no negligence or inaction nor want of bona

  fides imputable to the appellant the Court must be satisfied that there

  was due diligence on the part of the appellant.

10.   The facts of this case are to be considered on the touchstone of the

  broad principles which have been laid down by the Supreme Court of

  India while considering the present application for condonation of

  delay. The conduct of the appellant in the present case shows total

  callousness. The appellant cannot be treated at par with an illiterate

  litigant.   The appellant was not diligent in pursuing the matter. The

  application itself would show that ten months' time was taken only to

  decide whether an appeal was to be filed or not. Further I do not find

  the explanation satisfactory that the file was lost in the office from

  January, 2008 to December, 2008 and thereafter the appeal was filed

  in February, 2009. In these circumstances the Court is unable to find

  out any good ground for condoning the delay. Accordingly the

  application is dismissed.

RFA No. 57/2009
 11.    In view of the orders passed in application for condonation of delay,

     appeal is dismissed.




                                                          G.S. SISTANI, J.

July 13, 2010 aj