Pt. Kanahya Lal Dayawanti Punj ... vs N.S. Bhatia & Ors.
2013 Latest Caselaw 4146 Del

$~S-1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 924/2004

%                                              Judgment dated 13.09.2013

        PT. KANAHYA LAL DAYAWANTI PUNJ
        CHARITABLE SOCIETY                                        ..... Plaintiff
                 Through: Mr.S.C. Singhal, Advocate

                           versus

        N.S. BHATIA & ORS.             FB+                        ..... Defendant
                  Through:          Mr.Rishi Kapoor, Advocate

        CORAM:

              HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
IA.No.15333/2012 & Review Petition No.475/2012
1.      Plaintiff seeks review of the order dated 19.4.2012 passed in
        I.A.No.1251/2010 (filed by defendant Nos.1 to 6) in the suit. Application
        has also been filed under Section 5 of the Limitation Act, seeking
        condonation of 88 days delay in filing the review petition. The review
        petition and the application under Section 5 of the Limitation Act have
        been heard together and are being disposed of by a common order. The
        grounds set out in this application seeking condonation of delay are that
        the order dated 19.4.2012 passed by this Court was not brought to the
        notice of the review petitioner by their counsel. It is submitted that only
        when a communication dated 27.7.2012 was received from Sh.N.S. Bhatia
        (respondent no.1) that a Chartered Accountant would be visiting the office

for inspection of the record, the applicant came to know of the order so

passed. A letter dated 30.7.2012 has been annexed with the application for review which has been addressed to the counsel, who had been appearing in the matter. It is submitted that the delay in moving this application was neither intentional nor deliberate and thus the delay should be condoned.

2. The present application is vehemently opposed by counsel for the respondent. It is submitted that the order was passed with the consent of the parties on 19.4.2012. It is further contended that the delay in filing the review petition cannot be condoned as the review petitioner has been negligent in pursuing the matter. It is further contended that the application lacks material particulars and it does not detail the steps taken by the applicant after 27.7.2012 when he was made aware of the order so passed.

3. Mr.Singhla, further submits that there is nothing on record to suggest that the order dated 19.4.2012 was not brought to the notice of the applicant; the application is casual in nature and is liable to be dismissed.

4. On the merits of the matter, counsel for the review petitioner submits that the counsel, who gave the consent, was not authorized to give consent for allowing a Chartered Accountant to inspect the record. Counsel has drawn attention of the Court to the order dated 30.4.2008 by which only consent was given to allow the defendants no.1 to 6 to inspect the record.

5. Mr.Singhal, counsel for respondent in this review petition submits that the submissions made by counsel for the review petitioner are factually incorrect as on 30.4.2012 while deciding IA.No.5506/2004 it was agreed that all accounts would be open for inspection to defendants No.1 to 6 once in a quarter, and one representative of defendants No.1 to 6 would be permitted to inspect the books. Mr.Singhal, further submits that a meaningful interpretation was to be given to this order and since the

representative was to be allowed to inspect the accounts, the representative would include a Chartered Accountant, as only a Chartered Accountant would only be able to scrutinize its accounts and pinpoint the shortcomings, if any in the accounts of the defendants.

6. I have heard counsel for the parties. On 30.4.2008 the following order was passed in IA.No.5506/2004:

"IA.No.5506/04 in CS(OS)No.924/2004

With the consent of parties following order is passed:

1. The defendants shall have liberty to continue the suit pending before the District Court. The order passed by this Court in no way shall prejudice the rights of the defendants in pending suit and the Trial Court seized with the matter shall not be prejudiced by the order dated 6.11.2007 passed by this Court.

2. The plaintiff society shall maintain all accounts of the hospital. All accounts shall be open for inspection to the defendant once in a quarter. One representative of defendant nos.1 to 6 shall inspect the books of account of the hospital once in a quarter after giving prior intimation to the plaintiff of the date of inspection.

3. The plaintiff shall have no interference and shall not object to attendance of any member of the defendant nos.1 to 6 in Governing Body's Meeting of the Trust. The plaintiff shall run the hospital in a manner that it serves the cause of the common and poor man, till the rights of the parties are determined finally by the Court.

4. Defendants Nos.1 to 6 shall not interfere in day-to-day working, management and operation of the hospital. If defendant has any grievance, the defendant shall make an application to the Court.

Application stands disposed of.

IA.No.5845/04

The Contempt is dismissed as not pressed in view of the consent order passed by the Court.

Dasti.

IA.No.924/2004

List for framing of issues on 7th November, 2008."

7. Thereafter order dated 30.4.2008 was confirmed and the suit was decreed on 2.4.2009.

8. Subsequently an application was filed by the defendants No.1 to 6 I.A.No.1251/2010 under Order 39 Rule 2A CPC alleging wilful disobedience of the orders dated 30.4.2008 and 2.4.2009. This court had then passed the following order on 19.4.2012:

"I.A.1251/2010

1. This is an application filed by petitioners (defendants no.1-6 in the suit) under Order XXXIX Rule 2A CPC alleging willful disobedience of the order passed by this Court on 30.4.2008 and 2.4.2009 by the respondent (plaintiff in the suit).

2. It may be noticed that the present suit already stands decreed by a consent order dated 2.4.2009. Grievance of the petitioners is that respondent has willfully disobeyed the consent order passed by this Court on 30.4.2008 and 2.4.2009 and has not permitted the Chartered Accountant of the petitioners to inspect the accounts.

3. By the order dated 30.4.2008 parties had agreed that the respondent society shall maintain all accounts of the hospital and all accounts shall be open for inspection to the petitioners once in a quarter. It was also agreed by the parties that one representative of petitioners shall inspect the books of accounts of the hospital once in a quarter, after giving prior intimation to the plaintiff of the date of inspection.

4. Mr.S.C.Singhal, learned counsel for the petitioners, submits that petitioners had addressed a communication to the respondent that their Chartered Accountant would be visiting the respondent hospital. In response to this communication the respondent had informed the petitioners that only one of the six petitioners can inspect the records.

5. Mr.Aashish Aggarwal, learned counsel for the respondent, submits that the order dated 30.8.2008 was passed by the court with the consent of the parties and on the basis of understanding between the parties, however, without admitting any of the allegations made by petitioners in the present application and subject to all the legal objections, which the petitioners have raised, respondent hospital will have no objection if one representative (Chartered Accountant) of the petitioners inspect the books of account of the respondent hospital once in a quarter, after giving one week's prior intimation to the respondent for inspection of the accounts. It is also agreed that the Chartered Accountant may take the assistance of two other members of his staff in order to expeditiously comply with the directions passed by this Court. Mr.Aggarwal assures the court that all necessary assistance will be rendered to the representative of petitioners to ensure compliance of the order of this Court. Mr.Aggarwal also undertakes to the Court that all accounts from 2009 onwards will be allowed for inspection to petitioners.

6. In view of the stand taken by Mr.Aashish Aggarwal, learned counsel for the respondent hospital, learned counsel for petitioners submits that no further orders are required to be passed in the present application and the same may be disposed of.

7. Accordingly, application stands disposed of in view of the stand taken by Mr.Aashish Aggarwal, learned counsel for the respondent society. Respondent society shall be bound by the stand taken by the counsel in Court today."

9. Since the plaintiff/ review petitioner did not allow the representative of

the respondents, who happened to be a Chartered Accountant, order dated 19.4.2012 was passed in an application IA.No.1251/2010, in continuation of the order dated 30.4.2008, when parties had agreed that plaintiff society will maintain accounts of the hospital and the accounts would be open for inspection to the defendants once in a quarter. It was also agreed that one representative of defendant nos.1 to 6 would be entitled to inspect the books of account of the hospital once in a quarter after giving prior intimation to the plaintiff of the date of inspection.

10. Reading of the orders would show that the suit had already been decreed by a consent order dated 2.4.2009; and even on 30.4.2008 it was agreed that the accounts would be inspected by a representative of the respondents and at no stage the order of 30.4.2008 was challenged. The order of which review is sought has only clarified that the representative would be a Chartered Accountant, who would inspect the books of the hospital once in a quarter.

11. Undoubtedly in the order dated 30.4.2008 it was not defined as to who would be the authorized person to inspect the books of accounts, but to send a layman to inspect the account would be meaningless and accordingly the order was clarified with the consent of the parties on 19.4.2012. Even otherwise, there is nothing on record to suggest that the counsel was not authorized to make such a statement. No grounds are made out to entertain the review petition and the same is dismissed being without any merit.

12. There is also no merit in the application filed under Section 5 of the Limitation Act. The application is casual in nature, lacks material particulars and the same is not bona fide.

13. While dealing with an application under Section 5 of the Limitation Act, the Court must satisfy itself that the delay was not caused either on

account of carelessness or negligence. It is also settled law that it is not necessary to explain each and every day's delay, however, in the present application except for casual reference that the counsel did not inform the review petitioner of the order so passed, there is no material to support this ground. Blaming lawyers and change of lawyers is fast gaining pace. The applicant is unable to satisfy this court that the delay was on account of bona fide reasons or reasons beyond the control of the applicant. The application is without any merit and the same is also dismissed.

G.S.SISTANI, J SEPTEMBER 13, 2013 ssn