Tarlochan Singh And Ors. vs Union Bank Of India And Ors.
2012 Latest Caselaw 7064 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           I.A. No.11281/2012(by D-2 & D-3 u/Order IX Rule 7
            CPC) and I.A. No.11283/2012(by D-2 & D-3 u/Section 5
            of Limitation Act ) in CS(OS) 99/2004


                                         Date of Decision: 11th December,2012

IN THE MATTER OF
TARLOCHAN SINGH AND ORS.                                        ..... Plaintiffs

                               Through Mr.S.K.Dubey, Ms.Zeenat Masoodi,
                               Ms.Bhagyashree Pati, and Mr.Malay Dwivedi,
                               Advocates
                  versus


UNION BANK OF INDIA AND ORS.                       .... Defendants
                   Through Mr.Madan Gera and Ms.Vriti Anand,
                   Advocates for D-2 & D-3

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present applications have been filed by the applicants/defendants

No.2 & 3, who are husband and wife, praying inter alia for setting aside the

ex-parte order dated 8.9.2004 and for condonation of delay of 2360 days in

filing the accompanying application, under Order IX Rule 7 of the Code of

Civil Procedure (for short `CPC').

2. Vide order dated 8.9.2004, the defendants No.2 & 3 were proceeded

against ex-parte and the plaintiffs were directed to file their ex-parte

evidence by way of affidavits in a suit for declaration, for execution of the

sale deeds and for permanent injunction. Pertinently, the defendant

No.1/Bank was also proceeded against ex-parte by the same order.

Thereafter, the ex-parte evidence was concluded by the plaintiffs sometime

in the year 2005 and the suit was ripe for final arguments.

3. The explanation offered by learned counsel for the defendants No.2 &

3 for seeking condonation of delay of 2360 days in filing the accompanying

application, under Order IX Rule 7 CPC is that the applicants/defendants

No.2 & 3 had engaged a counsel to defend their case and they had signed a

vakalatnama in her favour, whereafter, she had assured them that she was

following the case diligently and was appearing on all dates and that the

present suit was pending consideration by the court. However the defendant

No.3 was keeping indifferent health since the year 2000 and the defendant

No.2 was also not in good health since the year 2003 and therefore, both of

them were unable to follow up their case with their counsel and trusted her

to diligently defend the same on their behalf.

4. It is averred in the present application that the applicants/defendants

No.2 & 3 came to know from the defendant No.1/Bank that the bank and the

plaintiffs had settled their interse dispute and the plaintiffs had moved a

fresh application for passing of a decree in their favour and only thereupon

did the defendants No.2 & 3 approach another Advocate and engaged him to

verify the status of the present suit. The said Advocate, Mr.Ashutosh Dubey

had appeared in Court on 17.4.2012, inspected the file and informed the

defendants No.2 & 3 that the plaintiffs had filed an application for passing a

decree in their favour, in view of a settlement arrived at between them and

the defendant No.1/bank. Defendants No.2 & 3 claimed that only at that

stage did they come to know that their previously engaged counsel had

neither appeared in Court and nor had she filed a written statement on their

behalf. As a result, the present applications have been filed by them for

seeking condonation of delay of 2360 days in filing the application under

Order IX Rule 7 CPC and for setting aside the ex-parte order dated 8.9.2004.

5. Learned counsel for the applicants/defendants No.2 & 3 submits that

the explanation offered hereinabove may be considered as sufficient ground

for condoning the delay of 2360 days in filing the accompanying application

under Order IX Rule 7 CPC and permitting the defendants No.2 & 3 to

participate in the present proceedings.

6. The present applications are, however, vehemently opposed by

learned counsel for the plaintiffs who states that the applications are not

bonafide and the defendants No.2 & 3 are nothing short of fence sitters. He

submits that the plaintiffs had instituted the present suit for declaration,

mandatory injunction and specific performance for execution of Agreements

to Sell dated 12.9.1994 and 13.9.1994, in December 2003. Thereafter, the

defendants No.2 & 3 had appeared in person before the learned Joint

Registrar on 11.5.2004 and they were granted four weeks time to file their

written statements and the suit was adjourned for 23.8.2004. However, the

written statement was not filed by the defendants within the time granted.

Instead, on 23.8.2004, a counsel by the name of Ms.Sumita Chaudhary had

appeared on behalf of the aforesaid defendants and she had sought an

adjournment to file the written statement. Upon perusing the record, the

Joint Registrar observed that the defendants No.2 & 3 had put in their

appearance on 11.5.2004 and the period of ninety days had expired ever

since then. Similarly, it was noticed that the defendant No.1/bank was

served with the summons on 8.6.2004 and a period of more than sixty days

from the date of service of summons upon the bank had expired and none of

the defendants had filed their written statements. As a result, the suit was

placed before the Court for appropriate orders on 8.9.2004. On 8.9.2004, in

view of the fact that none of the defendants had filed their written

statements within the period prescribed or even during the extended period

as stipulated in the CPC, they were proceeded against ex-parte and the

plaintiffs were called upon to lead their ex-parte evidence by way of

affidavits.

7. Learned counsel for the plaintiffs urges that the submission made by

the applicants/defendants No.2 & 3 in the present applications, to the effect

that they remained blissfully unaware of the status of the present

proceedings and had solely relied upon their counsel to pursue the case, is

untenable and liable to be turned down for the reason that on a perusal of

the records, it can be seen that the said defendants were constantly aware

of the status of the present proceedings and their claim that they had filed a

written statement, that was purportedly signed by them on 7.9.2004, is not

borne out from the records.

8. Mr. Dubey further states that the applicants/defendants No.2 & 3

were regularly being represented at the hearings held before the Debt

Recovery Tribunal, Delhi where the defendant No.1/Bank had instituted

recovery proceedings against them and their company and the said

proceedings had remained pending till as late as 3.7.2012. He submits that

the defendants were represented by an Advocate throughout the aforesaid

proceedings and on certain occasions, defendant No.2 had been personally

appearing in the said proceedings. He therefore contends that it does not lie

in the mouth of the defendants No.2 & 3 to claim that they were unaware of

the pendency of the present proceedings as the plaintiffs were also

participating in the recovery proceedings filed by defendant no. 1/Bank

before the Debt Recovery Tribunal and they had apprised the said forum

about the orders that were being passed in the present proceedings.

9. On merits, it is submitted by learned counsel for the plaintiffs that

during the pendency of the present suit, the plaintiffs who are the bonafide

purchasers of the suit property from the defendants No.2 & 3, had paid them

part sale consideration of `26,00,000/- by way of bank drafts in the year

1994 and the balance sum of `10,00,000/- was deposited by the plaintiffs

directly with the defendant No.1/Bank pursuant to the order dated

21.3.2007, that was passed in the present proceedings. Thereafter, the

plaintiffs had arrived at a "One Time Settlement" with the defendant

No.1/Bank with whom the defendants No.2 & 3 had mortgaged the suit

property behind their back, and paid a sum of `4,00,00,000/- to the bank.

Vide order dated 17.4.2012 passed in IA No.6889/2012, an application that

was jointly filed by the plaintiff and the defendant No.1/bank under Order

XXIII Rule 3 CPC, on the basis of the settlement arrived between the parties

pursuant to the aforesaid "One Time Settlement arrived at between them,

the bank had deposited the title deeds of the suit property in this court. He

submits that it is only at that stage that the defendants No.2 & 3 who were

watching the entire proceedings from the sideline, decided to jump into the

fray and filed the present misconceived applications for condonation of delay

and for seeking recall of the aforesaid ex-parte order passed seven years

and eight months ago and for grant of permission to participate in the suit

proceedings.

10. It is further stated that the applicants cannot be permitted to urge that

they had remained unaware of the pendency of the present proceedings,

particularly since they were regularly and actively appearing in the criminal

proceedings that were initiated by the plaintiffs on the basis of a criminal

complaint lodged against them. To substantiate the aforesaid submission,

learned counsel for the plaintiffs refers to the court proceedings, as

recorded in FIR No.285/2001, right from the year 2004 upto the year 2012,

where the presence of the applicants/defendants No.2 &3 has been marked

on different occasions.

11. The Court has heard the learned counsels for the parties and

considered their respective submissions in the light of the documents placed

on record.

12. It is settled law that condonation of delay is a matter of discretion of

the court and ordinarily, the court should be liberal in condoning the delay if

it is satisfied that the explanation offered by a party is bonafide and

sufficient and advances the cause of justice. Further, the courts should not

adopt pedantic approach and insist that each and every day's delay be

explained by the applicant. The length of delay is not as relevant as the

acceptability of the explanation offered by the litigant. As observed by the

Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamoorthy 1998

(7) SCC 123, the time limit fixed for approaching the court in different

situation is not because on expiry of such time, a bad cause would transform

into a good cause. The aforesaid parameters have been reiterated in a

number of decisions including in the cases of Sangram Singh Vs. Election

Tribunal, Kotah, AIR 1995 SC 425; State of Nagaland Vs. Lipok Ao & Ors.

AIR 2005 SC 2191; New India Insurance Co. Ltd. Vs. Shant Mishra, 1975

(2) SCC 840 and State of Kerala Vs. E.K. Kuriyipe & Ors. (1981) Suppl.

SCC 72. At the end of the day, the courts are meant to advance substantial

justice and adjudicate disputes between the parties. However, when the

delay is as inordinate as it is in the present case, then the explanation

offered by the applicants must be examined by the court with greater care

and caution to rule out gross negligence, deliberate inaction or lack of

bonafides.

13. In the present case, the defendants No.2 & 3 have sought condonation

of delay of 2360 days in filing the accompanying application, under the

provisions of Order IX Rule 7 CPC. The applicants/defendants No.2 & 3 have

mainly referred to their ill health to explain the lack of diligence on that part

in pursuing the present case. That apart, they have sought to blame their

previous counsel, who they claimed they had trusted, for pursuing the

present proceedings on their behalf. The aforesaid explanation offered by

the defendants No.2 & 3 for seeking condonation for such a prolonged period

is to say the least, extremely vague and sketchy.

14. It has been observed time and again that a litigant is expected to be

diligent in pursuing his own case and he cannot remain indolent and inactive

and then lay the entire blame at the door of his counsel when found in

default. The claim of the applicants/defendants No.2 & 3 that they had

executed a vakalatnama in favour of the previous counsel is not borne out

from the record, inasmuch no vakalatnama has been filed on their behalf in

the present case. Further, the claim of the defendants No.2 & 3 that they

had prepared a written statement and had handed it over to their counsel in

September 2004, for the same to be filed, is also not borne out upon perusal

of the records, as no written statement finds place on record nor has any

date of filing of diary number been furnished to substantiate the said

submission.

15. It is impermissible for the defendants No. 2&3 to have remained

slothful for almost eight years without bothering to verify the status of the

present case. Both the defendants are admittedly literate persons and are

therefore expected to be well aware of the fall out of the present litigation

and in such circumstances when they state that their stake in the case is

significant, they ought to have been diligent enough to have pursued the

case regularly and conscientiously with their counsel. The explanation

offered by the defendants No. 2 and 3 that they had engaged a counsel and

had trusted her enough not to follow up the status of their case with her, is

therefore unacceptable. On a pointed query addressed to learned counsel

for the defendants No.2 & 3 as to whether they had lodged any complaint

against the counsel who was previously engaged by them for her failure to

diligently prosecute the present case on their behalf, the answer is in the

negative. In such circumstances, the court is not at all convinced by the

explanation offered by the defendants No.2 & 3 that it was due to their ill

health and on account of their implicit trust in their previous counsel that

they had not followed up this case with the due diligence expected of a

vigilant litigant.

16. The aforesaid observation is fortified by the fact that it is an admitted

position that defendants No. 2 & 3 were being represented by a counsel in

the recovery proceedings, initiated against them by the defendant

No.1/Bank before the Debt Recovery Tribunal, Delhi and not only that, on

certain occasions, the defendant No.2 had personally appeared before the

Tribunal. Moreover, the plaintiffs have placed on record the details of the

proceedings of the present case before the Debt Recovery Tribunal and

therefore, the defendants No.2 & 3 cannot claim that they remained

blissfully unaware of the status of the proceedings in the present case.

17. There is merit in the submission made by learned counsel for the

plaintiffs that the defendants No.2 & 3 were all along aware of the present

proceedings and chose to remain fence sitters in the hope that the suit

property that had been mortgaged by them with the defendant No.1/Bank

would remain entangled in prolonged litigation and at a convenient point in

time, they would jump into the fray and seek to participate in the present

proceedings. The fact that the plaintiffs had filed a criminal complaint

against the defendants No.2 & 3 pursuant where to an FIR was lodged

against them and a criminal case arising therefrom is pending, where both

the defendants have taken bail and were regularly appearing before the

concerned court, is a clear pointer to the fact that they had deliberately

chosen to be active where they wanted to and had remained inactive when it

suited them.

18. In view of the aforesaid facts and circumstances, the court is of the

opinion that there is no explanation worth the name, much less a bonafide

explanation offered by the applicants/defendants No.2 & 3 for seeking

condonation of delay of a long stretch of 2360 days in filing an application

under Section 5 of the Limitation Act. Even otherwise, the court has perused

the averments made in the application filed by the applicants/defendants

No.2 & 3 under Order IX Rule 7 CPC for setting aside the ex-parte order

dated 8.9.2004 and the explanation offered is virtually the same as has been

stated in the application for condonation of delay, except for the fact that

the defendants No.2&3 have additionally questioned the nature of the

settlement that has been arrived at between the plaintiffs and the defendant

No.1/Bank. The said explanation is found to be insufficient and highly

unsatisfactory for the court to exercise its discretion in favour of the

applicants/defendants No.2 & 3. It cannot be stated that the defendants

No.2&3 have acted with reasonable diligence in defending the present case.

The gross negligence and deliberate inaction on their part is sufficient to

deprive them of the protection granted by Section 5 of the Limitation Act.

19. In view of the above facts and circumstances, the present applications

are found to be devoid of merits and are dismissed with costs of `20,000/-,

payable to the non-applicants/plaintiffs, within two weeks.

(HIMA KOHLI) JUDGE DECEMBER 11, 2012 mk/raj