Delhi High Court
Atul Agarwal vs India Infoline Home Finance ... on 29 November, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th November, 2021
+ CM(M) 326/2020 & CM No.9541/2020 (for interim relief)
ATUL AGARWAL ..... Petitioner
Through: Petitioner in person.
Versus
INDIA INFOLINE HOME FINANCE LIMITED ..... Respondent
Through: Mr. Nishant Awana, Mr. G.S.
Awana and Mr. Devansh
Malhotra, Advocates for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J. (Oral)
1. The present petition under Article 227 of the Constitution of India
impugns the order dated 23rd January, 2020 passed by the Court of
Additional District Judge (ADJ), Dwarka Courts, Delhi in Civil Suit
No.439/2019, whereby the application for condonation of delay filed on
behalf of the respondent/defendant no.2, in respect of filing the memo of
appearance, has been allowed subject to costs of Rs.10,000/-.
2. The facts in the present petition are not in dispute and are stated
below:
2.1 The suit was filed by the petitioner/plaintiff for recovery in
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May 2019 under Order XXXVII of the Code of Civil
Procedure, 1908 (CPC).
2.2 The summons were served on the respondent/defendant on 12th
June, 2019 and thereafter, dates were fixed in the matter on 20 th
August, 2019, 19th October, 2019 and 5th December, 2019,
when the counsel for the respondent/defendant no.2 appeared
but did not file the memo of appearance.
2.3 On 5th December, 2019, the counsel for respondent/defendant
no.2 submitted before the ADJ that he would move an
application putting appearance of defendant no.2 and seeking
condonation of delay in putting the appearance by 6 th
December, 2019. Though, same was opposed by the
petitioner/plaintiff, in the interest of justice, one opportunity
was granted by the ADJ.
2.4 Ultimately, the memo of appearance was filed only on 6th
December, 2019 after a delay of 167 days.
3. The counsel for the petitioner/plaintiff contends that the no cogent or
sufficient reasons have been stated in the application for condonation of
delay filed on behalf of the respondent/defendant no.2 and therefore, delay
should not have been condoned in the present case. He further submits that
whole purpose for filing a summary suit under Order XXXVII of the CPC
was defeated if such an ordinate delay is condoned.
4. The counsel for the respondent/defendant no.2 submits that, (i) upon
receipt of summons on 12th June, 2019, the counsel was engaged by the
respondent/defendant no.2; (ii) the respondent/defendant no.2 through
counsel informed the petitioner/plaintiff of his appearance in the matter vide
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letter dated 20th June, 2019; (iii) the counsel for the respondent/defendant
no.2 was regularly appearing in the suit, however, he did not file the memo
of appearance, which is required to be filed in terms of Order XXXVII Rule
2(3) of the CPC; (iv) there is no lapse on behalf of the respondent/defendant
no.2; and (v) as per the judgment of this Court in Babu Lal Yadav Vs. R.S.
Yadav & Co. & Anr. ILR (2010) 4 Del 517, while condoning the delay, the
length of delay is not relevant and the explanation offered for the delay has
to be seen and in the present case, the words "sufficient cause" should
receive liberal meaning.
5. It has been noted in the impugned order that the respondent/defendant
no.2 had notified the factum of putting appearance to the petitioner/plaintiff
but it was mere inadvertence or negligence of the counsel for
respondent/defendant no.2 in not putting the appearance in the Court for
which the respondent/defendant no.2 should not be made to suffer.
6. In the same vein, the counsel for the respondent/defendant no.2 has
correctly placed reliance upon the judgment of this Court in Babu Lal
Yadav (supra).
7. Reference may be made to paras 14 and 17 of the aforesaid judgment,
which are set out below:
"14. It is trite that condonation of delay is a matter of discretion
of the Court. Section 5 of the Limitation Act, 1963 does not
prescribe that such a discretion can be exercised by the Court
only if the delay is for a certain period of time, rather the length
of delay is hardly relevant. What is to be considered is the
explanation offered for the delay. Thus each case has to be
examined in its own facts and as long as there is a satisfactory
explanation offered for the delay, the Court is well within its
powers to accept the explanation and condone the delay. Merely
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because the title of the application does not reflect the correct
position of law, can also not be a ground to oust a party. What has
to be examined is the explanation offered in the application and
the relief sought. In other words, substantial justice cannot be
permitted to be sacrificed at the alter of technicalities. In the case
of N. Balakrishnan v. M. Krishnamurthy reported as (1998) 7 SCC
123, the Supreme Court relying on its earlier decisions in the case
of Shakuntala Devi Jain v. Kuntal Kumari reported as (1969) 1
SCR 1006 and State of West Bengal v. Administrator, Howrah
Municipality reported as (1972) 1 SCC 366, held that the words
"sufficient cause" as mentioned in Section 5 of the Limitation Act,
1963 ought to receive a liberal construction so as to advance
substantial justice for „court knows that refusal to condone delay
would result in foreclosing a suitor from putting forth his cause‟.
It was further observed that "it must be remembered that in every
case of delay, there can be some lapse on the part of the litigant
concerned. That alone is not enough to turn down his plea and to
shut the door against him. If the explanation does not smack of
mala fides or it is not put forth as part of dilatory strategy, the
Court must show utmost consideration to the suitor". It was also
observed as under:
9. It is axiomatic that condonation of delay is a matter of
discretion of the court. Section 5 of the Limitation Act
does not say that such discretion can be exercised only if
the delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only
criterion. Sometimes delay of the shortest range may be
uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range
can be condoned as the explanation thereof is
satisfactory. Once the court accepts the explanation as
sufficient, it is the result of positive exercise of discretion
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and normally the superior court should not disturb such
finding, much less in revisional jurisdiction, unless the
exercise of discretion was on wholly untenable grounds or
arbitrary or perverse. But it is a different matter when the
first court refuses to condone the delay. In such cases, the
superior court would be free to consider the cause shown
for the delay afresh and it is open to such superior court to
come to its own finding even untrammelled by the
conclusion of the lower court.
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. The
time limit fixed for approaching the court in different
situations is not because on the expiry of such time a bad
cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the rights
of parties. They are meant to see that parties do not resort
to dilatory tactics, but seek their remedy promptly. The
object of providing a legal remedy is to repair the damage
caused by reason of legal injury. The law of limitation fixes
a lifespan for such legal remedy for the redress of the legal
injury so suffered. Time is precious and wasted time would
never revisit. During the efflux of time, newer causes would
sprout up necessitating newer persons to seek legal remedy
by approaching the courts. So a lifespan must be fixed for
each remedy. Unending period for launching the remedy
may lead to unending uncertainty and consequential
anarchy. The law of limitation is thus founded on public
policy. It is enshrined in the maxim interest reipublicae up
sit finis litium (it is for the general welfare that a period be
put to litigation). Rules of limitation are not meant to
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destroy the rights of the parties. They are meant to see that
parties do not resort to dilatory tactics but seek their
remedy promptly. The idea is that every legal remedy must
be kept alive for a legislatively fixed period of time."
(emphasis added)
xxx xxx xxx
17. In the present case, no mala fides have been imputed to the
respondents, nor has any reason been shown as to why the
respondents would not want to contest the suit, in case they were
aware of the fact that in the event of their failure to appear
within ten days, a decree would be passed against them. It can
also not be said that the mistake on the part of the respondents
for not entering appearance within ten days, was not bona fide.
The explanation offered by the respondents in their application
was that they were unaware of the technicalities involved in a
summary suit and contacted his counsel only two days prior to
the date fixed before the Court. The counsel filed
his vakalatnama on the said date. The learned Additional District
Judge has accepted the explanation offered by the respondents as
„sufficient‟. The trial court having so exercised its discretion in
favour of the respondents, this court is not inclined to disturb
such a finding as the exercise of discretion by the trial court has
not been assailed on the ground that it is wholly untenable or so
adverse or arbitrary that it cannot stand. Rather, a perusal of the
impugned order shows that the trial court has duly taken into
consideration the fact that no formal application for appearance
was filed by the respondents, though the application for seeking
condonation of delay was filed and thus, the delay was condoned,
subject to payment of costs of Rs. 1,000/-."
8. The dicta of Babu Lal Yadav (supra) is squarely applicable to the
facts of the present case. It appears that there was a lapse on the part of the
counsel engaged by the respondent/defendant no.2, as despite appearing on
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multiple dates, he did not enter appearance as required under Order XXXVII
Rule 2(3) of the CPC. Furthermore, no mala fides have been imputed to the
respondent/defendant no.2, who evidently wanted to contest the suit. The
contention of the counsel for the respondent/defendant no.2 of the suit
involving triable issues has also been considered by the Trial Court.
Furthermore, costs have been imposed on the respondent/defendant no.2 in
order to condone the delay. In the opinion of this Court, refusal to condone
the delay would result in foreclosing the respondent/defendant no.2 from
putting forth its cause, which would cause a grave prejudice to the
respondent/defendant no.2 in the suit. Therefore, the Trial Court has rightly
applied liberal construction to the cause of delay so as to advance substantial
justice and not defeat the rights of the parties.
9. Furthermore, once the Trial Court had examined the present case in
its own facts and heard the explanation of the respondent/defendant no.2, the
Trial Court was well within its powers to accept the explanation as
satisfactory and condone the delay.
10. In view of the aforesaid, there is no reason why this Court should
interfere under Article 227 of the Constitution of India with the discretion
exercised by the Trial Court.
11. There is no infirmity in the impugned order of the Trial Court
condoning the delay in filing the memo of appearance on behalf of the
respondent/defendant no.2.
12. Accordingly, the petition is dismissed.
AMIT BANSAL, J.
NOVEMBER 29, 2021/dk
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