J.H. Jewellers vs Umed Chindaliya And Ors
2018 Latest Caselaw 7590 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(COMM.) 180/2017

                                     Reserved on:        16.11.2018
                                     Date of decision:   21.12.2018

IN THE MATTER OF:
J.H. JEWELLERS                                     ..... Plaintiff
                       Through: Mr. Manav Gupta and Ms. Esha Dutta,
                       Advocates.

                       versus

UMED CHINDALIYA AND ORS                        ..... Defendants
                 Through: Mr. Ravinder Sethi, Senior Advocate with
                 Ms. Jagriti Ahuja and Mr. Puneet Sharma, Advocates
                 for D-4.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J.

REVIEW PET. 253/2017 (by D-4 u/S 114 r/w O XLVII CPC) and I.A. 7373/2017 (for condonation of delay of 578 days in filing REVIEW PET. 253/2017)

1. The present review petition has been filed by the defendant No.4/Kotak Mahindra Bank Ltd. (in short, 'Kotak Bank') under Section 114 read with Order XLVII and Section 151 CPC for seeking review of the order dated 23.09.2015, whereunder the condonation of delay application accompanying the Chamber Appeal (O.A. No.371/2015) filed by it's predecessor bank, ING Vyasa Bank Ltd. (in short, 'ING

Vyasa') against the order dated 16.10.2014, passed by the learned Joint Registrar closing its right to file the written statement, was dismissed and as a consequence, the Chamber Appeal was also dismissed.

2. The relevant facts of the present case, considered necessary to decide the review petition are as follows.

3. In January, 2014, the plaintiff had instituted a suit for recovery of Rs.10,17,42,312/- against the defendants No.1 to 3 and the originally impleaded defendant No.4/ING Vyasa. Defendant No.4/Bank was served with the summons in the suit sometime in April, 2014 and had entered appearance through Mr. Vikas Chopra, Advocate before the Joint Registrar on 28.04.2014. As the defendant No.4/Bank did not file its written statement within the statutory period, the learned Joint Registrar closed its right to file the written statement vide order dated 16.10.2014. Instead of filing a Chamber Appeal against the aforesaid order dated 16.10.2014, the defendant No.4/Bank elected to file an application for condonation of delay (I.A. 22198/2014) on 11.11.2014 alongwith a written statement. However, when the matter was listed before the Joint Registrar on 14.11.2014, learned counsel for the defendant No.4/Bank sought leave to withdraw the said application when the other side pointed out that the same was not maintainable since the right of the Bank to file the written statement had already been closed vide order dated 16.10.2014.

4. Subsequently, on 09.09.2015, Kotak Bank moved a Chamber Appeal against the order dated 16.10.2014, passed by the Joint Registrar, registered as O.A. No.371/2015 accompanied by an

application for seeking condonation of delay of 315 days (I.A. 20181/2015). In the application for condonation of delay, the explanation offered by the Bank for the delay was that some renovation work was taking place in the chamber of their counsel due to which, some files had got misplaced and further, that the process of amalgamation of ING Vyasa with Kotak Bank was undergoing, which was approved by the parties and made effective from 01.04.2015. Not convinced with the explanation offered in the captioned application, this Court had declined to exercise its discretion in favour of the Bank and had dismissed the said application vide order dated 23.09.2015. As a consequence thereof, the Chamber Appeal was also dismissed. For the purposes of ready reference, the order passed on 23.09.2015, is reproduced hereinbelow:-

"IA No.20181/2015 (by D-4 for condonation of delay) and OA No.371/2015 (by D-4 against the order dated 16.10.2014.

1. IA No.20181/2015 has been filed by defendant No.4/Bank praying inter alia for condonation of delay of 315 days in filing the Chamber Appeal, whereunder its right to file the written statement was closed by the learned Joint Registrar.

2. The explanation offered in the application for seeking condonation of delay of a prolonged period of 315 days in filing the Chamber Appeal is that some renovation work was taking place in the chamber of the counsel due to which, some files had got misplaced and further, that the applicant was undergoing the process of amalgamation with Kotak Mahindra Bank Ltd., which was approved by the parties and made effective from 1.4.2015.

3. The amalgamation of the defendant No.4/Bank with another entity, that was given effect to on 1.4.2015, would hardly be of any assistance to the said defendant to explain the delay in filing the Chamber Appeal for the reason that the defendant No.4 was served with summons in the suit after 01.04.2015, at the end of the same month . However, the written statement was not filed by the said defendant within the prescribed period of 30 days or the extended period of 60 days or within the outer limit of 90 days, as is available in law. Instead, after the order dated 16.10.2014 came to be passed, when the learned Joint Registrar had closed the right of the defendant No.4/Bank to file the written statement, the said defendant filed the written statement at its own leisure, on 11.11.2014, with an application seeking condonation of delay of almost six months beyond the prescribed period of 30 days, available in law.

4. The other explanation offered in the application that some renovation work was taking place in the office of the counsel is neither here, nor there and is not considered a reasonable explanation for such an inordinate delay. To make it worse, it has taken the defendant No.4/Bank almost one year to approach the Court to assail the order dated 16.10.2014, whereunder its right to file the written statement was closed.

5. Given the facts of the present case, and the extremely casual and indifferent approach of the defendant No.4/Bank in defending the suit, the Court is not persuaded to exercise its discretion in its favour and declines to condone the delay of 315 days in filing the Chamber Appeal. Resultantly, the present application is dismissed and as a consequence thereof, the Chamber Appeal also stands dismissed."

5. Aggrieved by the aforesaid order, defendant No.4/Kotak Bank filed an intra-court appeal bearing FAO(OS) No.192/2016, on 02.06.2016. Accompanying the said appeal was an application for

condonation of delay of 221 days. The captioned appeal was listed before the Division Bench on 13.07.2016, on which date learned counsel appearing on behalf of the Bank had stated that his client was willing to deposit a sum of Rs.5 lakhs, which may be appropriated towards costs in the event the appeal is allowed. On the condition that the Bank deposits the said amount in the Registry within one week, notice was issued on the application for condonation of delay (CM APPL. 24132/2016). However, subsequently, vide order dated 20.12.2016, the Division Bench declined to condone the delay on the part of the defendant No.4/Bank in filing the appeal. As a result, the said application was dismissed and consequently, the appeal was also dismissed with liberty granted to the appellant to approach the Registry for seeking refund of Rs.5 lakhs deposited by it. The order dated 20.12.2016 passed by the Division Bench reads as follows:-

"This appeal is directed against the order dated 23.09.2015 passed by a learned single Judge of this Court in IA No.20181/2015 seeking condonation of delay in filing the chamber appeal (OA No.371/2015) in respect of the order dated 16.10.2014. At the outset, we may point out that the present appeal is also accompanied by an application for condonation of delay and we had issued notices only in the condonation of delay application.

The present appeal has been filed after a delay of 221 days from the said impugned order dated 23.09.2015. The Chamber appeal being OA No.371/2015 had also been filed after a delay of 315 days and it is for that reason that the application for condonation of delay being IA No.20181/2015 had been filed before the learned single Judge. We may point out that the chamber

appeal was directed against the order dated 16.10.2014 whereby the Joint Registrar had closed the right of the appellant/defendant no.4 for filing the written statement as the same had not been filed during the period provided. In fact, the written statement was filed only after 102 days delay i.e. even beyond the period of 90 days. Thus, we find that at each stage, the appellant has taken steps after a great delay. If the total extent of delay is computed, it would amount to 638 days delay in pursuing these proceedings. If we were to allow this application for condonation of delay, we would, in fact, be condoning the delay of 638 days. We do not find any sufficient cause for condoning such delay. In fact, we do not find any infirmity in the decision of the learned single Judge in not condoning the delay of 350 days in filing of the chamber appeal. The reasons have been given in the detailed impugned order itself which we need not repeat.

The delay in filing the present appeal cannot be condoned. The application is dismissed, consequently, the appeal also stands dismissed. There shall be no order as to costs.

The sum of Rs.5 lacs which has been deposited pursuant to an order of this Court, be returned to the appellant."

6. Not satisfied with the dismissal order dated 20.12.2016 passed by the Division Bench, the defendant No.4/Kotak Bank filed SLP(Civil) No.9046/2017 before the Supreme Court. When the said SLP was listed on 31.03.2017, learned counsel for the defendant No.4/Bank herein (petitioner in the SLP) sought permission to withdraw the same with liberty to pursue such other remedies as may be available to it in law. Leave, as prayed for, was granted and the SLP was dismissed as withdrawn. After almost two months, the present review petition was

filed by the defendant No.4/Kotak Bank on 24.05.2017 and it was listed in Court on 07.07.2017.

7. Accompanying the present review petition is an application moved under Section 5 of the Limitation Act (I.A. 7373/2017), wherein the review petitioner seeks condonation of delay of 578 days in filing the review petition. The grounds offered for seeking condonation of delay is that previous counsel for the review petitioner, had never communicated anything to Kotak Bank about the fate of the Chamber Appeal due to which its Legal Department remained under the impression that the same was pending consideration and it was only on 18.05.2016, when the Chief Manager (Legal) was consolidating the data of pending cases that he came across the order dated 23.09.2015 on the website of the High Court and took steps to file an intra-court appeal on 01.06.2016. The said appeal was listed before the Division Bench on 13.07.2016 alongwith an application for condonation of delay which was ultimately dismissed on 20.12.2016, on the ground of limitation. Aggrieved by the dismissal order, the review petitioner filed a SLP before the Supreme Court, which was withdrawn on 31.03.2017 with liberty to seek appropriate legal recourse. Thereafter, the present review petition was filed on 24.05.2017, alongwith an application for seeking condonation of delay of 578 days.

8. On merits, the main plank of the arguments addressed by Mr. Ravinder Sethi, Senior Advocate appearing for the defendant No.4/Bank is that there is an error apparent in the order dated 23.09.2015 insofar as this Court has observed that the Bank was served

with the original summons after 01.04.2015, which was the date of the actual amalgamation of ING Vyasa with Kotak Bank, whereas as per the record, ING Vyasa had entered appearance in the suit on 28.04.2014 and Kotak Bank was never served with the summons in the suit.

9. It was contended on behalf of the review petitioner that had the above error in the order dated 23.09.2015 not crept in, th is Court would have considered the effect of the amalgamation of ING Vyasa with Kotak Bank while examining the application for condonation of delay, which was mistakenly not considered on a presumption that it was Kotak Bank that had originally been served with the summons in the suit. It was also argued that passing of the order dated 23.09.2015, was not brought to the notice of Kotak Bank by the lawyer who kept communicating the subsequent dates on which the matter was listed, which was of no consequence when the right of the Bank to file the written statement stood closed.

10. It was thus canvassed that since incorrect/irrelevant material had weighed with the Court while passing the order dated 23.09.2015, which is an error apparent on the face of the record, it is a fit case where the said order ought to be reviewed. In support of the said submission, reliance has been placed on Musammat Jamna Kuer vs. Lal Bahadur and Ors. reported as 1950 RLW 158, S. Nagaraj and Ors. vs. State of Karnataka and Anr. reported as 1993 Supp. (4) SCC 595, Green View Tea and Industries vs. Collector, Golaghat, Assam and Anr. reported as (2004) 4 SCC 122, Board of Control for Cricket in

India and Anr. vs. Netaji Cricket Club and Ors. reported as (2005) 4 SCC 741 and Rajender Singh vs. Lt. Governor, Andaman & Nicobar Islands and Others reported as (2005) 13 SCC 289.

11. Per contra, Mr. Manav Gupta, learned counsel for the plaintiff has vehemently opposed the present application not only on merits, but also on the ground of maintainability. He referred to the provision of Order XLVII Rule 1 CPC that provides for filing of an application for review of a judgment and contended that once the defendant No.4/Bank had preferred an appeal against the order dated 23.09.2015 before the Division Bench, that came to be dismissed subsequently, any review application in respect of the same order is barred by res judicata. To substantiate his plea that on the defendant No.4/Bank having filed an appeal against the order dated 23.09.2015 passed by this Court in the Chamber Appeal and the said appeal having been dismissed by the Division Bench, a similar plea cannot be taken in the present application for seeking review of the same order, learned counsel cited M/s Kabari Pvt. Ltd. vs. Shivnath Shroff reported as AIR 1996 SC 742, State of Bihar and Ors. vs. Jethmull Bhojraj reported as (2000) 48 (1) BLJR 199 and OKU Tech Private Limited vs. Sangeet Agarwal and Ors. reported as MANU/DE/2036/2016 (Delhi).

12. On merits, learned counsel for the plaintiff submitted that the plea taken by the defendant No.4/Bank relating to the amalgamation of ING Vyasa with Kotak Bank, is of no relevance as the said amalgamation had taken place on 01.04.2015, whereas the right of the defendant No.4/Bank to file the written statement was closed by the Joint Registrar much earlier thereto, on 16.10.2014. Clause 7(vii) of the Scheme of Amalgamation

of the two banks was quoted to urge that after the amalgamation, Kotak Bank had simply stepped into the shoes of ING Vyasa, originally impleaded as defendant No.4 in the suit, but no additional benefits can enure in favour of Kotak Bank because of the said amalgamation. It may be noted that clause 7(vii) of the Scheme of Amalgamation contemplates that all the suits, applications and legal/other proceedings by or against the Transferor Bank shall be transferred in the name of the Transferee Bank, to be continued and enforced in the same manner as if the same had been pending and/or had arisen by or against the Transferee Bank.

13. Further, the attention of this Court was drawn to the affidavits filed by the defendant No.4/Bank in support of the Chamber Appeal (O.A. No.371/2015) and the accompanying application for condonation of delay (I.A. 20181/2015) to state that the same were filed by the same person, Mr. Proloy Mukherjee, who at one place has described himself as the Regional Operations and Services Head of ING Vyasa and at the other place, as the Regional Operations and Services Head of Kotak Bank. It was urged that now Kotak Bank cannot be permitted to take cover behind ING Vyasa as the said affidavits demolish the argument advanced that officers of Kotak Bank were unaware of the pendency of this suit or the orders passed thereon, when the common link between both the Banks remained the very same officer of a senior rank, who was earlier serving in ING Vyasa and later on, in Kotak Bank.

14. In the rejoinder arguments, Mr. Sethi, learned Senior Advocate appearing for the defendant No.4/Bank rebutted the arguments

addressed by learned counsel for the plaintiff and asserted that while passing the order dated 20.12.2016, the Division Bench had only dismissed the condonation of delay application filed by Kotak Bank and it was as a consequence thereof that the appeal came to be dismissed and in the absence of any notice issued in the appeal, it cannot be urged that the same stood dismissed on merits. In support of his submission that there is distinction between an "appeal" and a "proposed appeal", he relied on Mamuda Khateen & Ors. Vs. Beniyan Bibi & Ors. reported as AIR 1976 CAL 415 (FB), Bhagwan & Ors. vs. Kachrulal & Ors. reported as 1987(2) BCR 153 and Nirbhay Singh vs. State of Rajasthan reported as AIR 2002 RAJ. 28.

15. As for the description of Mr. Proloy Mukherjee as the Head of Regional Operations and Services of ING Vyasa and of Kotak Bank in the affidavits filed with the Chamber Appeal and the condonation of delay application, it was submitted that this would not be of any consequence because the entire management of ING Vyasa had changed on its amalgamation with Kotak Bank. He also alluded to the provisions of Order XLIII Rule 2 CPC which prescribes the procedure for filing appeals from orders and lays down that the rules of Order XLI (that deals with appeals from original decrees) shall apply to appeals from orders and sought to argue that since Order XLI Rule 3A CPC postulates submission of an application for condonation of delay , on an appeal being presented after the expiry of the period of limitation, dismissal of such an application cannot be treated as an order passed on the merits of the appeal itself. Learned counsel concluded by

submitting that defendant No.4/Bank may be granted permission to file the written statement in the interest of substantial justice, on adequately compensating the plaintiff, as may be deemed appropriate by the Court.

16. This Court has pondered over the arguments advanced by learned counsel for the parties and perused the case law cited by both sides.

17. Coming first to the relevant dates, the undisputed position is that after service was effected on ING Vyasa in the suit, it had entered appearance through a counsel for the first time on 28.04.2014. The maximum period available under the Code to file the written statement is 90 days that would have expired in this case on 27.07.2014. The right of the defendant No.4/Bank to file the written statement was closed by the Joint Registrar on 16.10.2014, i.e., after about six months, if calculated from 24.08.2014 and almost three months, if calculated from 27.07.2014. The prescribed period for preferring a Chamber Appeal against such an order is 30 days. However, the Chamber Appeal was filed by the defendant No.4/Bank after almost one year reckoned from 16.10.2014, i.e., on 10.09.2015. The Chamber Appeal was accompanied by an application for seeking condonation of delay of 315 days. Pertinently, much before the said date, ING Vyasa had already amalgamated with Kotak Bank on 01.04.2015. But no steps were taken by either of the two Banks to bring the said fact to the notice of the Court by filing an application for impleadment and amendment of the memo of parties.

18. Vide order dated 23.09.2015, the condonation of delay application accompanying the Chamber Appeal was dismissed by this

Court. As a consequence thereof, the Chamber Appeal was also dismissed. Though it had an option to file a review application within 30 days therefrom, the defendant No.4/Bank elected to file an intra- court appeal. The Statute prescribes a period of 30 days for preferring an intra-court appeal. However, the defendant No.4/Bank took a period of eight months and seven days to file an appeal on 01.06.2016. An application for condonation of delay of 221 days was also filed alongwith the said appeal. The Division Bench dismissed the condonation of delay application on 20.12.2016, by noting that if the same is allowed, they would be condoning a delay of 638 days when no sufficient cause had been shown for the same. As a consequence, FAO(OS) 192/2016 was also dismissed. Aggrieved by the said order, the defendant No.4/Bank preferred a SLP before the Supreme Court on 09.03.2017, which came to be dismissed as withdrawn on 31.03.2017. However, the present review petition was filed after almost two months reckoned therefrom, on 24.05.2017. Looking at the aforesaid timeline, if the defendant No.4/Bank is now permitted to file the written statement, the total period of delay that would have to be condoned would be of over four years, if calculated from 28.4.2014, upto the date of filing the review application, after excluding the period of 30 days available in law.

19. Now coming to the explanation sought to be offered by the defendant No.4/Bank for seeking condonation of delay of 578 days in filing the review application, it has been stated that the previous counsel, Mr. Vikas Chopra, Advocate did not communicate anything to

the Bank about the fate of the Chamber Appeal and it was only on 18.05.2016, when the Chief Manager (Legal) of the Bank came across the order dated 23.09.2015, whereunder the Chamber Appeal was dismissed that steps were taken to file an intra-court appeal on 01.06.2016; that the application for seeking condonation of delay in filing the said appeal was dismissed by the Division Bench on 20.12.2016 on the ground of limitation, whereafter the Bank had preferred a SLP before the Supreme Court within the period of limitation that was dismissed as withdrawn on 31.03.2017.

20. Considering the fact that separate affidavits were sworn by Mr. Proloy Mukherjee in support of the Chamber Appeal and the condonation of delay application and in one affidavit, he has described himself as the Head of Regional Operations and Services of ING Vyasa and in the other affidavit, as the Head of Operations and Services of Kotak Bank, this Court is unwilling to accept the plea taken that Kotak Bank remained blissfully unaware of the fate of the Chamber Appeal. The officer named above was well conversant with the case to swear two separate affidavits on behalf of both the Banks. Therefore, it has to be assumed that the Transferee Bank was apprised of the court proceedings and the outcome of the Chamber Appeal. This view is fortified by the fact that the date mentioned in the affidavits filed in support of the Chamber Appeal and the condonation of delay application is 09.09.2015, by which date, ING Vyasa had already been amalgamated with Kotak Bank. As a matter of fact, once the Scheme of Amalgamation had become operational on 01.04.2015, there was no

occasion for ING Vyasa to have filed a separate affidavit with the Chamber Appeal. Effective from 01.04.2015, it was for Kotak Bank, who had stepped into the shoes of ING Vyasa, to take all necessary legal steps in terms of clause 7(vii) of the Scheme of Amalgamation.

21. It is also noteworthy that for reasons best known to both the Banks, neither of them took any steps to apprise the Court of the Scheme of Amalgamation and seek impleadment of Kotak Bank as the successor Bank of ING Vyasa either before, or even contemporaneous to filing the Chamber Appeal. It is a matter of record that Kotak Bank was formally substituted in the suit in place of ING Vyasa , as late as on 27.09.2017. The casual approach of the defendant No.4/Bank can also be gauged by the fact that they took their own sweet time to file the intra-court appeal against the order dated 23.9.2015 and thereafter, to approach the Supreme Court against the order dated 20.12.2016 passed by the Division Bench. After the Bank withdrew the SLP on 31.03.2017, it took another 53 days to file the present review petition. The lack of diligence and promptitude on the part of defendant No.4/Bank is therefore writ large on the record.

22. Now, keeping aside the delay part for a moment and focusing on the merits of the review application, the primary argument canvassed on behalf of the defendant No.4/Bank for seeking review of the order dated 23.09.2015, is that this Court has committed an error while examining its application for condonation of delay and acted on a presumption that it was Kotak Bank that had originally been served with the summons in the suit. To assert so, reference has been made to

the observations recorded in the first sentence of para 3 of the order dated 23.09.2015, wherein the date on which the defendant No.4/Bank was served with the summons in the suit is mentioned as "after 01.04.2015, at the end of the same month". It has been vehemently argued that "01.04.2015" was not the date of service of the summons on Kotak Bank, but the date on which ING Vyasa stood amalgamated with Kotak Bank.

23. It may be noted that in the very same para 3 of the order dated 23.09.2015, this Court had gone on to record that the Joint Registrar had closed the right of the Bank to file the written statement on 16.10.2014. That being the factual position, nothing will turn on the typographical error in the first sentence of para 3 of the order dated 23.09.2015, insofar as the date of service of the summons in the suit on ING Vyasa is concerned. It is also not in dispute that ING Vyasa was originally impleaded as defendant No.4 and was served with the summons in the suit prior to 28.04.2014, the date fixed before the Joint Registrar. The said Bank had appeared through a counsel on the said date but admittedly, it had failed to file the written statement within the prescribed period of 30 days or the extended period of 60 days or within the maximum period of 90 days, as available in law. Even if the maximum period of 90 days is reckoned from 28.04.2014, the date when the defendant No.4/Bank was represented in Court through an advocate, the timeline available to file a written statement would have expired on 30.07.2014. But no steps were taken by ING Vyasa to file a

written statement right upto 16.10.2014, the date on which the Joint Registrar had finally closed its right to do so.

24. It is nobody's case that Kotak Bank had come into the picture in the year 2014 or for that matter, till 01.04.2015 for this Court to gather any erroneous impression that the said Bank had been served with the summons in the suit. Moreover, in para 2 of the very same order, this Court had taken note of the fact that the amalgamation between ING Vyasa and Kotak Bank was effective from 01.04.2015. The order dated 23.09.2015 went on to record the fact that the defendant No.4/Bank had elected to file the written statement on 11.11.2014 , with an application for seeking condonation of delay of almost six months beyond the prescribed period of 30 days available in law. In view of the above factual position, the error in recording the date on which defendant No.4/Bank was actually served with the summons in the suit, is of no significance. It is quite apparently a typographical error of which no advantage can be taken by Kotak Bank, for seeking review of the order dated 23.09.2015.

25. As for the other plea taken by the defendant No.4/Bank yet again in the review application that the order dated 23.09.2015 was not brought to the notice of Kotak Bank and the lawyer kept on communicating the subsequent dates, which were of no consequence, by no stretch can the said explanation be treated as an error apparent on the face of the record for permitting the review application. Unlike a private individual, the Bank has an entire legal department to deal with its litigation and other legal affairs. It can therefore not be permitted to

lay the entire blame at the door of its advocate, without offering any plausible explanation for the complete lack of follow up by its own officers. It may be noted that by September, 2015, over six months had lapsed between the date of the amalgamation of the two Banks and the dismissal of the Chamber Appeal. There was ample time for Kotak Bank to have come to grips with the pending litigations that were being faced by ING Vyasa. The very fact that the very same senior ranking officer had sworn separate affidavits in support of the Chamber Appeal and the condonation of delay application and he had remained the common link, goes to show that Kotak Bank was all along in the know of the manner in which the present case was progressing. They cannot be permitted to feign complete ignorance by trying to pass on the buck to their advocate. As a responsible client, a greater duty was cast on Kotak Bank to remain abreast of the Court proceedings.

26. This Court is thus of the opinion that the decisions cited on behalf of the defendant No.4/Bank, as referred to in para 10 abov e, on the parameters within which a Court ought to exercise its jurisdiction to review an order, cannot be of any assistance in the facts of the instant case as the entire argument of Kotak Bank hinges on the erroneous date (01.04.2015) mentioned in para 3 of the order dated 23.09.2015, when nothing can turn on it in the light of the fact that the right of its predecessor, ING Vyasa, to file the written statement was closed by the Joint Registrar as long back as on 16.10.2014 when Kotak Bank was nowhere in the picture. Nor does the order dated 23.9.2015, operate on any erroneous presumption or a mistake on the part of the Court, as

sought to be pleaded. On the other hand, this application is nothing but an attempt to re-argue the Chamber Appeal and the condonation of delay application filed by the review petitioner earlier, which is impermissible in law. Contrary to the submission made by the defendant No.4/Bank that equity demands that it be given an opportunity to file the written statement, this Court is of the opinion that if such a permission is granted, then it would amount to condoning a delay of over four years without any just or sufficient cause. This would cause grave prejudice to the plaintiff as the suit is at an advance stage of trial where evidence has already been led by it. The serious consequences that the defendant No.4/Bank claims that it is likely to face if not permitted to file the written statement, must be balanced against the injustice that would be caused to the plaintiff if the present application is allowed and that too, in a suit that has been converted into a commercial suit for recovery of a liquidated amount and permanent injunction and ought to be disposed of in a time bound manner.

27. Since pains have been taken to examine the pleas taken in the condonation of delay application and in the review application that have been found to be devoid of merits, this Court does not propose to go into either the objection taken by learned counsel for the plaintiff as to the maintainability of the review application on the ground that it is barred by res judicata, or the distinction sought to be drawn by the defendant No.4/Bank between "an appeal" and a "proposed appeal".

28. Thus this Court finds no valid reason for reviewing the order dated 23.9.2015. The review petition is accordingly dismissed as meritless alongwith the application for condonation of delay. No orders as to costs.

(HIMA KOHLI) JUDGE DECEMBER 21, 2018 rkb/ap