Arizona Printers & Packers Ltd. ... vs State Bank Of Patiala And Anr.
2010 Latest Caselaw 1279 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                        + C.R.P. 118/2009


                                             Decided on 08.03.2010

IN THE MATTER OF :


ARIZONA PRINTERS & PACKERS LTD. AND ANR.         ..... Petitioners
                  Through: Mr. Rajesh Malhotra, Advocate

                  versus


STATE BANK OF PATIALA AND ANR.                   ..... Respondents
                  Through: Mr. Shiv K. Tyagi, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may         Yes
        be allowed to see the Judgment?

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

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

HIMA KOHLI, J. (Oral)

1. Vide order dated 24.08.2009, notice was issued in the

present petition, limited to the aspect of enhancement of costs payable

by the respondents, as ordered by the learned Additional District Judge

on 03.07.2009, while allowing the application preferred by the

respondent No.1/Bank (defendant No.2 in the suit filed by the

petitioner), under Section 5 of the Limitation Act, seeking condonation

of delay of approximately 4 years in filing an application under Order

IX Rule 13 CPC, for setting aside an ex-parte judgment and decree

dated 24.08.2006.

2. While issuing notice on 24.08.2009, the court examined the

impugned judgment at length and held that it did not deserve any

interference except for the aspect of costs of Rs.5,000/- imposed on

the respondent/Bank by the trial court, while allowing its application,

in view of the negligence on its part as brought out in the impugned

order. Pertinently, the order dated 24.08.2009 was challenged by the

petitioner, by filing an appeal before the Supreme Court. However,

the said appeal was dismissed and hence, the said order has attained

finality.

3. On the last date of hearing, appearance was entered by

respondent No.1 and the counsel for respondent No.1/Bank had

sought time to address arguments. While adjourning the matter for

today, he was directed to inform the Court as to whether the costs of

Rs.5,000/- imposed by the impugned order dated 03.07.2009 had

been tendered to the petitioner. Today, it is stated by the counsel for

the respondent No.1/Bank that the costs were tendered only on

12.10.2009, and the same were not accepted by the counsel for the

petitioner on the ground that the present revision petition had been

filed by it.

4. A perusal of the impugned order dated 03.07.2009 shows

that the pending application of the respondent/Bank filed under Order

IX Rule 13 CPC seeking setting aside of the ex-parte decree was

directed to be listed on 25.07.2009. On 25.07.2009, at the joint

request of the counsels for the parties, the matter was adjourned to

24.08.2009. However, the costs were not tendered by the respondent

No.1/Bank on the said date. It is not disputed by the counsels for the

parties that further dates were fixed in the application, but the costs

were tendered by the respondent/Bank only on 12.10.2009. Ideally

speaking, the application filed by the respondent under Order IX Rule

13 CPC could not be considered by the court below in view of the fact

that the order dated 03.07.2009 was a conditional order and the delay

in filing the application was condoned, subject to payment of costs of

Rs.5,000/- by the respondent/Bank. Assuming that there was no

timeline fixed for paying the costs, the payment ought to have been

made by the respondent No.1/Bank within a reasonable time of 3-4

weeks. However, the costs came to be tendered after over three

months, only in October, 2009 which can, by no stretch of

imagination, be termed as a reasonable time for compliance of the

impugned order.

5. As far as the aspect of quantum of costs is concerned, on

which notice was issued in the present petition, the facts reveal that

the respondent No.1/Bank was proceeded against ex-parte vide order

dated 20.07.2004. The ex-parte decree came to be passed after about

two years, on 24.08.2006. The petitioner/plaintiff filed an execution

petition against the judgment debtors including respondent No.1/Bank

on 18.07.2008. The respondent No.1/Bank filed an application under

Order IX Rule 13 CPC, seeking setting aside of the ex-parte judgment

and decree, supported by an application under Section 5 of the

Limitation Act, for condonation of delay of approximately four years in

preferring the said application, which was filed on 08.10.2008. It is,

therefore, quite clear that there was delay of approximately four years

on the part of the respondent No.1/Bank in approaching the trial court

for setting aside of the ex-parte judgment and decree passed against

it.

6. Counsel for the respondent No.1/Bank submits that the

contention of the counsel for the petitioner that the letter dated

22.01.2007 sent by the petitioner to the respondent No.1/Bank,

intimating it about the ex-parte judgment and decree, was never

received by the respondent No.1/Bank and hence, it was unaware of

the ex-parte judgment and decree. It is further stated that there was

no communication between the Bank and its counsel during the period

w.e.f. 20.07.2004, when it was proceeded against ex-parte, and till it

received a copy of the warrant of attachment application.

7. The lack of communication between the client and the

counsel was a ground, which was duly considered not only by the court

below but also in the present proceedings on 24.08.2009. But while

balancing equities, it is necessary to keep in mind the fact that a delay

of four long years has been caused in the conduct of the trial of the

suit of the petitioner, purely for the fault which squarely lies at the

door of the respondent/Bank. Much emphasis has been laid by the

counsel for the respondent/Bank on the fact that the respondent

No.1/Bank is a public sector undertaking. That the respondent No.1

is a public sector undertaking only means that a heavier onus rests on

its shoulder not only to conduct itself with probity in its public

dealings, but also to conduct itself with a greater sense of

responsibility in all other spheres, including litigation pending in

courts. At the same time, the Court cannot lose sight of the fact that

the respondent No.1 being a public sector bank, is dealing with public

funds and any further costs imposed on it will result in indirectly taxing

the public for a fault which is actually attributable to a lackadaisical

approach of the concerned officers of the respondent/Bank dealing

with the case in hand.

8. In this view of the matter, over and above the costs of

Rs.5,000/- imposed by the impugned order, the respondent No.1/Bank

shall pay additional costs of Rs.5,000/- to the petitioner, which amount

shall be recovered by the respondent No.1/Bank from the defaulting

officers after an inquiry in that regard is held by the Chief Manager of

the Bank. Proof of recovery of the balance costs from the concerned

officers shall be placed on the record of the trial court alongwith an

affidavit of the Chief Manager of the respondent No.1/Bank. The

costs imposed by the impugned order dated 03.07.2009 and those

imposed by this Court shall be paid to the petitioner through counsel,

within two weeks from today.

9. The revision petition is disposed of.

                                                      (HIMA KOHLI)
MARCH 8, 2010                                            JUDGE
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