Delhi High Court

Satnam Chand Kohli vs Sri Nath Malhotra on 25 September, 2013

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 25th September, 2013.

+      RFA 414/2013, CMs No.13529/2013 (for condonation of 3 years 2
       months & 6 days delay in filing the appeal) & 13531/2013 (for
       condonation of 3 days delay in re-filing the appeal)

       SATNAM CHAND KOHLI                                    ....... Appellant
                  Through:              Mr. J.S. Vohra, Advocate.

                                 Versus

    SRI NATH MALHOTRA                                         ..... Respondent
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 18 th March, 2010

of the Court of Additional District Judge (ADJ)-03, (North) Delhi of

dismissal of Civil Suit No.305/2008 (instituted on 20th November, 1997)

filed by the appellant for recovery of Rs.7,02,000/- from the

respondent/defendant on account of repayment of loan of Rs.4 lakhs.

2. The appeal is accompanied with an application for condonation of 3

years 2 months and 6 days delay in filing the same and with yet another

application for condonation of 3 days delay in re-filing the appeal.

3. The reason given for the inordinate delay in filing the appeal is:

(i) that the appellant/plaintiff was not keeping good health in the

year 2009 and his health deteriorated regularly further down with the

result that the appellant/plaintiff had even been operated thrice during

the year 2012 starting from 1st January, 2012 to 24th March, 2012;

(ii) that the appellant/plaintiff was almost a bed ridden person from

the start of the year 2010 with the result that the appellant/plaintiff

could not apply for the certified copy of the judgment and decree

himself;

(iii) that the counsel for the appellant/plaintiff had applied for the

copy of the judgment but not for decree;

(iv) that the decree sheet could not have been ready at that time;

(v) that since January/February, 2010 the appellant/plaintiff had

been bed ridden with various ailments of abdominal region regarding

which some medical records are filed with the application;

(vi) that the ailments became worse in the year 2011 and the

appellant/plaintiff was hospitalized on 1st January, 2012 for operation;

that the appellant/plaintiff who was about 70 Kg. in 2009 is now just

weighing 50 Kg. and is unable to move much;

(vii) that the appellant/plaintiff with great difficulty through his

brother Mr. Kirpal Kohli contacted his lawyer for filing the appeal on

28th November, 2012 but the appellant/plaintiff could not contact his

lawyer personally so as to give instructions;

(viii) that it was only after middle of May, 2013, the

appellant/plaintiff could approach the counsel;

(ix) that the certified copies were then obtained from the earlier

Advocate when it was realized that the decree sheet was not available

and hence another application for certified copy of the decree sheet

was filed;

(x) that it was then learnt that the decree sheet had not been

prepared and the present appeal is being filed as early as possible.

4. The appellant/plaintiff, along with the application for condonation of

delay in filing the appeal, has filed:

(a) a Discharge Summary of a private hospital showing date of

admission as 26th November, 2009 and date of discharge as 1st

December, 2009 and showing the reason for admission as „acute

breathlessness‟ and diagnosis as „acute pulmonary oedema‟. The said

Discharge Summary does not show any advice for bed rest to the

appellant/plaintiff;

(b) Discharge Summary of a private hospital showing date of

admission and date of discharge as 5th April, 2011 and 8th April, 2011

respectively and showing the reason for admission as „loss of

consciousness for about 10-12 minutes‟ and again not showing any

advice for bed rest;

(c) Transfer Summary of a private hospital showing the date of

admission and date of transfer as 1st January, 2012 and 8th January,

2012 respectively and showing the reason for admission as

"ghabrahat, vomiting & pain";

(d) Discharge Summary of Sir Ganga Ram Hospital showing the

date of admission and date of discharge as 17 th January, 2012 and 19th

January, 2012 respectively and the appellant/plaintiff having

undergone the incisional drainage procedure; the physical activity

advised to the appellant/plaintiff therein is "normal activity";

(e) Discharge Summary of Sir Ganga Ram Hospital showing the

date of admission and date of discharge as 21st February, 2012 and

23rd February, 2012 and the appellant/plaintiff having undergone

debridement of wound and again advising "normal physical activity"

to the appellant/plaintiff;

(f) Discharge Summary of Sir Ganga Ram Hospital showing the

date of admission and date of discharge as 2 nd March, 2012 and 4th

March, 2012 respectively and the appellant/plaintiff having

undergone debridement with secondary suturing of wound and again

advising "normal physical activity" to the appellant/plaintiff.

Besides the aforesaid, the appellant/plaintiff has filed a large number

of other documents being the reports of pathological and radiological

examination of the appellant/plaintiff during the period of his admissions

aforesaid to the hospitals and in between also.

5. The appeal along with these applications came up first before this

Court on 3rd September, 2013 when, finding that the appellant/plaintiff had

not given any explanation whatsoever as to why, even if he was ill, the task

of preferring of the appeal could not have been undertaken by any other

family member of the appellant/plaintiff, it was enquired from the counsel

for the appellant/plaintiff as to why the appeal could not have been so filed

by any other person or even by the brother of the appellant/plaintiff who

was at one stage asked to do so. The counsel for the appellant/plaintiff

stated that the appellant/plaintiff is carrying on business as a jeweller but

had not been attending to his business also during the said time of which

condonation of delay is sought; on further enquiry, as to whether the

business was shut down during the said period, the counsel stated that the

business was being carried on by the same brother of the appellant/plaintiff.

6. Being of the view that when other worldly affairs of the

appellant/plaintiff could go on during the said period of his illness, so could

the appeal be filed and if grounds of illness as aforesaid were to be

considered for condonation of delay, it would be as good as writing off the

Limitation Act, the appellant/plaintiff was given an opportunity to file an

affidavit giving particulars of the members of his family who were staying

with him and explaining as to why the appeal could not be got filed through

them.

7. The appellant/plaintiff has in response thereto filed an affidavit dated

12th September, 2013 stating that his younger brother has been looking after

the joint business of jewellers in the name and style of M/s. Kohli Gems &

Jewellers; that the suit from which this appeal is arises was however looked

after by the appellant/plaintiff himself and the appellant/plaintiff had not

told about the same to anybody else including his sons and wife because the

sons of the appellant/plaintiff are extravagant and would spend all his

money if they knew that he was having some amount with him; that the

younger brother is financially sound and was looking after the

appellant/plaintiff as well as the old mother; that though the said brother in

the year 2010 had contacted the Advocate to file the appeal but the

Advocate stated that he would file the appeal only on the instructions from

the appellant/plaintiff; that the appellant/plaintiff has been totally physically

disabled from the beginning of the year 2010 till May, 2013 for filing the

appeal; that though the sons of the appellant/plaintiff are aged about 26 and

21 years but he has never relied upon them; that the wife and sons of the

appellant/plaintiff also have to attend to the appellant/plaintiff as well as the

old mother of the appellant/plaintiff.

8. The appellant/plaintiff has also filed the affidavit of his brother on the

same lines.

9. An analysis of the medical records of the appellant/plaintiff does not

show the appellant/plaintiff to have been throughout the said period of over

three years, been admitted to hospital or having been advised bed rest for

the entire said period. Rather, the advice in each of the aforesaid summaries

of the hospital at the time of discharging the appellant/plaintiff is for the

appellant/plaintiff to indulge in "normal physical activity". In the face of the

said records filed by the appellant/plaintiff himself, the plea of the

appellant/plaintiff of being continuously bed ridden for the entire period of

delay in filing the appeal, cannot be believed.

10. The suit from which this appeal arises was for recovery of monies

which the appellant/plaintiff claimed to have advanced as loan. The learned

ADJ in the impugned judgment has concluded that the appellant/plaintiff

had not advanced any loan to the respondent/defendant.

11. I have wondered, whether no finality is to be permitted to be attained

to such monetary claims also, though the law i.e. The Limitation Act, 1963

provides a limitation of 90 days only for appealing thereagainst.

12. The Supreme Court recently in Basawaraj Vs. The Special Land

Acquisition Officer MANU/SC/0850/2013 has reiterated:

A. that „sufficient cause‟ is the cause for which Defendant could

not be blamed for his absence;

B. that the word „sufficient cause‟ means that the party should not

have acted in a negligent manner or there was a want of bona fide on

its part in view of the facts and circumstances of a case or it cannot be

alleged that the party has not acted diligently or remained inactive;

C. that the discretion has to be exercised judiciously;

D. that the applicant must satisfy the Court that he was prevented

by sufficient cause from prosecuting his case and unless a satisfactory

explanation is furnished, the Court should not allow the application

for condonation of delay;

E. that the Court has to examine whether the mistake is bona fide

or to cover an ulterior purpose;

F. that though the expression „sufficient cause‟ should be given a

liberal interpretation to ensure that substantial justice is done, but

only so long as negligence, inaction or lack of bona fides cannot be

imputed to the party concerned;

G. that though the law of limitation may harshly affect a particular

party but it has to be applied with all its rigour when the statute so

prescribes;

H. that the Court has no power to extend the period of limitation

on equitable grounds;

I. that the result flowing from a statutory provision is never an

evil. A Court has no power to ignore that provision to relieve what it

considers a distress resulting from its operation;

J. that the statutory provision may cause hardship or

inconvenience to a particular party but the Court has no choice but to

enforce it giving full effect to the same;

K. that the Statute of Limitation is founded on public policy, its

aim being to secure peace in the community, to suppress fraud and

perjury, to quicken diligence and to prevent oppression. It seeks to

bury all acts of the past which have not been agitated unexplainably

and have from lapse of time become stale;

L. that an unlimited limitation would lead to a sense of insecurity

and uncertainty, and therefore, limitation prevents disturbance or

deprivation of what may have been acquired in equity and justice by

long enjoyment or what may have been lost by a party's own inaction,

negligence' or laches;

M. that if a party is found to be negligent, or for want of bona fide

on his part in the facts and circumstances of the case, or is found to

have not acted diligently or remained inactive, there cannot be a

justified ground to condone the delay;