Gujarat High Court
Dhairya Overseas vs Rajeshbhai Gordhanbhai Nanda on 7 December, 2021
Bench: J.B.Pardiwala
C/CA/3485/2019 ORDER DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 3485 of 2019
In F/FIRST APPEAL NO. 9902 of 2019
With
F/FIRST APPEAL NO. 9902 of 2019
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DHAIRYA OVERSEAS
Versus
RAJESHBHAI GORDHANBHAI NANDA
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Appearance:
MR. TUSHAR L.SHETH, ADVOCATE for the Applicants Nos. 1,2,3.
MR. PRATIK Y.JASANI, ADVOCATE for the Respondent No. 1.
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This is a successive application for condonation of delay in
filing the First Appeal at the instance of the original defendants
(judgment debtors).
2. We straightway take notice of the order passed by a
Coordinate Bench dated 7th May 2019 in the first round of the
litigation, i.e. the first Civil Application No.1057 of 2019 filed by
the applicants herein for condonation of delay. The said
application came to be rejected by the Coordinate Bench vide
order dated 7th May 2019. The same reads thus :
"1. By way of present application, the applicants have
prayed, inter alia, that :-
C/CA/3485/2019 ORDER DATED: 07/12/2021
"9(A) Your Lordships may be pleased to allow this
Civil Application and be further pleased to condone the
delay of 103 days that has been caused in filing the
First Appeal.
(B) Your Lordships may be pleased to exclude the
period from 18.9.2018 to 28.1.2019 during which SCA
15231 /2018 was pending before this Hon'ble Court
as per Sec. 14 of the Limitation Act.
(C) Any other and further relief/s as may be
deemed fit, just and proper may kindly be granted in
the interest of justice."
2. The applicants seek that the delay of 103 days
caused in filing the appeal may be condoned. To justify the
request, the applicants have offered and stated that -
"2. In the summary suit, leave to defend application
was allowed on condition to deposit 50% amount vide
the order dt. 21.7.2018. The applicants could not
deposit and wanted to challenge the said order. The
plaintiff applied for passing decree and the suit is
decreed on 1.9.2018 and decree came to be drawn on
7.9.2018.
3. Against the aforesaid orders, the applicants
preferred SCA No.15231/2018 on 18.9.2018. This
Hon'ble Court was not inclined to entertain the said
petition, therefore the said petition was withdrawn
with a liberty to file First Appeal before this Hon'ble
Court vide the order dt. 28.1.2019. Hence, the period
from 18.9.2018 to 28.1.2019 is required to be
excluded from the days of delay caused in preferring
the present appeal.
4. The applicants were told to get the certified copy
of both the orders and decree for preferring First
Appeal before this Hon'ble Court. The applicants
received certified copy in the third week of Feb 2019
and forwarded the same to his advocate of
Ahmedabad. Therefore, sometime is consumed in the
said process.
C/CA/3485/2019 ORDER DATED: 07/12/2021
5. The applicants were told for payment of the
amount of Court fees. The applicants submit that the
applicants are not having sufficient means to pay the
amount of Court-fees which come to the tune of
Rs.55,950/- on Rs. 60 Lac. However, they could
manage the same in the second week of March 2019.
6. The applicants were vigilant and took all
necessary steps to avoid delay but because of
aforesaid reasons, delay has been caused which is
required to be condoned in the interest of justice.
7. The applicants therefore filed the present
application for condonation of delay 103 days that has
been caused in filing the First Appeal."
3. Ordinarily court is lenient in the matter of condoning
delay. However, the applicants should, to say the least, at
least offer satisfactory explanation.
4. It is necessary to take into account the subject matter
of the appeal and the reliefs prayed for by the applicants -
appellants in the appeal.
4.1 In the appeal, present applicants have also challenged
the order dated 21.7.2018 whereby, the learned Trial Court
while granting conditional leave to defend, directed the
applicants - appellants to deposit 50% of the claim amount
within 1 month.
4.2 However, the applicants - appellants, without taking
any action, at the relevant time, (i.e. before expiry of time
granted for depositing the amount) against the order dated
21.7.2018, did not comply the said conditional order.
4.3 The said direction - order was not complied within
prescribed time or even thereafter.
4.4 Actually, the applicants - appellants on one hand did
not comply the order dated 21.7.2018 on the other hand, it
did not take any action (i.e. to challenge order dated
21.7.2018) against the order dated 21.7.2018 till the Court
passed final decree in the suit on 1.9.2018.
C/CA/3485/2019 ORDER DATED: 07/12/2021
4.5 The said order dated 21.7.2018 was neither complied
nor challenged till 1.9.2018 when the Court passed final
decree.
5. In light of the fact that the order dated 21.7.2018 was
neither challenged nor complied, the plaintiff submitted an
application Exh.87 to pass decree. The learned Trial Court
proceeded further in the suit and on an application below
Exh.87, the learned Trial Court passed decree on 1.9.2018,
directing the applicants - appellants to pay Rs.60 lakhs
with interest, as directed and allowed the suit No.30 of
2013.
5.1 In the appeal, the applicants - appellants have also
challenged order dated 1.9.2018 whereby the Trial Court, in
light of the fact that present applicant-appellant (original
defendant) did not comply the condition/order dated
21.7.2018 (condition for leave to defend) passed final order
on 1.9.2018. 5.2 It appears that after the Court passed final
decree on 1.9.2018, present applicants - appellants filed a
writ petition viz. SCA No.15231 of 2018.
6. So as to verify the subject matter of Special Civil
Application No.15231 of 2018 filed by present applicants
and so as to examine the relief which the present applicants
prayed for in the said petition, we called for the papers of
Special Civil Application No.15231 of 2018. In the said
petition the petitioner prayed, inter alia, that :-
"10(A) To quash and set aside the impugned
order dated 21.07.2018 to the extent of directing to
pay 50% amount as a condition for leave to defend,
passed by the Learned Principal Senior Civil Judge,
Jamnagar below Exhibit-78 in Summary Suit No.30 of
2013 and further be pleased to grant unconditional
leave to defend; and consequently be pleased to
quash and set aside the order dt. 1.9.2018 of
decreeing the suit passed below Exh. 87.
(B) During the pendency and final disposal of the
present petition, YOUR LORDSHIPS may be pleaesd to
stay the impugned order dated 21.07.2018 to the
extent of directing to pay 50% amount as a condition
C/CA/3485/2019 ORDER DATED: 07/12/2021
for leave to defend, passed by the Learned Principal
Senior Civil Judge, Jamnagar below Exhibit-78 in
Summary Suit No.30 of 2013 and consequently be
pleased to stay the order dt. 1.9.2018 of decreeing the
suit passed below Exh. 87 in Summary Suit No.30 of
2013.
(C) Pass any other and/or further orders that may
be through fit and proper, in the facts and
circumstances of the present case."
6.1 It is relevant to note that in said Special Civil
Application No.15231 of 2018, the petitioners (present
applicant-appellant) challenged the order dated 21.7.2018
along with the order dated 1.9.2018. The said Special Civil
Application No.15231 of 2018 was filed on or after
18.9.2018.
As mentioned above, the said Special Civil Application
No.15231 of 2018 came to be disposed of vide order dated
28.1.2019. The said order dated 28.1.2019 reads thus -
"Disposed of as withdrawn to enable the petitioners to
file First Appeal under section 96 of the Code of Civil
Procedure as requested. Such liberty is granted."
6.2 Thereafter, present appeal came to be filed on
19.3.2019 i.e. almost two months after the Special Civil
Application No.15231 of 2018 came to be disposed of, as
withdrawn (on 28.01.2019)
7. After the said order, the applicants - appellants have
filed present application and the appeal.
8. In this application, the applicants have prayed for
condonation of delay of 103 days.
9. It is pertinent to recall that in said petition (SCA
No.15231 of 2018) the petitioners (present applicants)
challenged both the orders i.e. order dated 21.7.2018 and
1.9.2018 and to note that now in appeal also both the
orders are challenged inasmuch as the appellants have
C/CA/3485/2019 ORDER DATED: 07/12/2021
prayed, inter alia, that:-
"9(b) Your Lordships may be pleased to quash and set
aside the impugned order dated 21.07.2018 to the
extent of directing to pay 50% amount as a condition
for leave to defend, passed by the Learned Principal
Senior Civil Judge, Jamnagar below Exhibit-78 in
Summary Suit No.30 of 2013 and further be pleased to
grant unconditional leave to defend; and consequently
be pleased to quash and set aside the order dt.
1.9.2018 of decreeing the suit passed below Exh.87
as well as decree at Exh.92 dt. 7.9.2018 passed in
Summary Suit No.30/2013."
10. According to the applicants, the said period of delay of
103 days is calculated from the date on which the ex-parte
decree came to be passed i.e. from 01.09.2018. 10.1 As
mentioned above, the applicants had taken out a petition i.e.
Special Civil Application No.15231 of 2018, wherein the
applicants also challenged the order dated 27.1.2018 as
well as order dated 1.9.2018.
11 The applicants - appellants claim and assert that the
remedy which the appellants availed by way of the petition
was proper remedy, however, since the court was not
inclined to entertain the petition on the ground that remedy
of appeal is available, the petition was not pressed and it
was withdrawn with a liberty to file appeal.
11.1 According to the applicants - appellants, the said
remedy was not wrong or improper remedy, but the remedy
which applicant-appellant preferred i.e. writ petition was
proper remedy.
11.2 Under the circumstances, in light of its own stand and
insistence and contention, the plea of set-off (Section 14 of
the Limitation Act) may not be available to the applicants -
appellants, because the applicants - appellants themselves
claim and assert & emphasize that the remedy, which they
availed was proper remedy and before the Court with
competent jurisdiction and the applicants - appellants had
not pursued wrong remedy.
C/CA/3485/2019 ORDER DATED: 07/12/2021
12. Even if it is assumed that plea under Section 14 of the
Limitation Act is available to the applicants - appellants,
then also such set-off would be available for the period from
18.9.2018 to 28.1.2019. However, since the applicants have
also challenged the order dated 21.7.2018 in the parent
appeal, the question about the period of limitation and delay
from the date of the order granting conditional leave i.e.
22.7.2018 to 17.9.2018 and from 29.1.2019 to 18.3.2019
would still survive.
12.1 In light of factual backdrop and in light of the relief
prayed for in present appeal, it is obligatory for the
applicants to explain the cause and circumstances for delay
in filing appeal against the order dated 21.7.2018.
12.2 Actually, the appellants are obliged to explain reasons
and circumstances for delay caused from 22.7.2018 (i.e. the
date when trial Court passed order and granted conditional
leave) to 17.9.2018 (i.e. the date when the applicants filed
the Special Civil Application No.15231 of 2018 against said
conditional order dated 21.7.2018).
12.3 Further, the appellants are also obliged to explain
delay from 29.1.2019 (i.e. date when the Court disposed of
Special Civil Application No.15231 of 2018) till 18.3.2019
(when the applicants filed F/First Appeal No.9902 of 2019.
13. In present application such delay is not explained/any
explanation is not offered.
14. As mentioned above, the order granting conditional
leave to defend came to be passed on 21.7.2018. The said
order was not complied within the time granted by the
learned Court. Any other step e.g. carrying the said order
further (so as to challenge the legality and propriety) also
were not taken within the time granted to comply the said
order.
14.1 Actually, until 18.9.2018, any steps with regard to
said order dated 21.7.2018 were not taken by present
applicants.
C/CA/3485/2019 ORDER DATED: 07/12/2021
14.2 It is material and pertinent to note that before the said
order dated 28.1.2019 in Special Civil Application No.15231
of 2018 came to be passed, the learned trial Court had, in
absence of any order by Appellate Court, proceeded with the
hearing of the suit and final orders/final decree came to be
passed in the Suit No.30 of 2013 on 1.9.2018.
14.3 It appears that the decree came to be drawn on
7.9.2018.
14.4 It was after the final order that the applicants -
appellants had filed said Special Civil Application No.15231
of 2018.
14.5 It was only on 18.9.2018 that the applicants -
appellants filed Special Civil Application No.15231 of 2018.
The proceedings of the said petition continued until
28.1.2019 when the learned Court vide order dated
28.1.2019 disposed off the petition as withdrawn.
14.6 Now, at this stage, it is also relevant to note that the
petition came to be disposed off on 28.1.2019.
14.7 By that time, the suit was also finally decided.
14.8 In that view of the matter, in the Special Civil
Application No.15231 of 2018, the applicants - appellants
(petitioners) had also challenged the final order dated
1.9.2018. The said petition, as recorded in the order dated
28.1.2019, came to be disposed off, as withdrawn since the
petitioners declared that it would file appeal under Section
96 of the Civil Procedure Code.
15. In this context, what is important and relevant to note
is that though the Special Civil Application No.15231 of
2018 came to be disposed off as withdrawn on 28.1.2019,
the appeal wherein present application is taken out, came to
be filed on 19.3.2019 (i.e. almost 2 months after the petition
came to be disposed off as withdrawn). Thus, for almost 2
months, the petitioner did not take any action.
C/CA/3485/2019 ORDER DATED: 07/12/2021
16. As mentioned above, in Special Civil Application
No.15231 of 2018, the petitioners had placed on record
certified copy of the order dated 21.7.2018 as well as order
dated 1.9.2018.
16.1 However, to explain the delay caused after Special
Civil Application No.15231 of 2018 came to be disposed off,
the appellants have offered only one explanation viz. that
after disposal of the petition, the applicants applied for
certified copy of both the orders which were provided in
February 2019.
16.2 Even if said explanation is accepted on its face value,
the fact remains that the applicants have not offered any
explanation for not taking any action (with regard to/
against the order dated 21.7.2018) from 22.7.2018 (i.e. after
the date of the said order) till 18.9.2018 when the petition
came to be filed.
16.3 The said order dated 21.7.2018 is challenged in the
appeal as well. The applicants - appellants have not offered
any explanation with regard to the delay caused in placing
the said order under challenge in the appeal.
17. Having regard to the decision by Hon'ble Apex Court in
case of Postmaster General & Others. v. Living Media India
Limited & Anr. [(2012) 3 SCC 563] wherein Hon'ble Apex
Court observed, inter alia, that:-
"21. Before considering whether the reasons for
justifying such a huge delay are acceptable or not, it is
also useful to refer the decisions relied on by Mr. Soli
J.Sorabjee, learned senior counsel for the respondents.
22. In CWT v. Amateur Riders Club, Bombay, there
is a delay of 264 days in filing the SLP by the
Commissioner of Wealth Tax, Bombay. The
explanation for the delay had been set out in
petitioner's own words as under:
".....2(g) The Advocate-on-Record got the special
leave petition drafted from the drafting Advocate
C/CA/3485/2019 ORDER DATED: 07/12/2021
and sent the same for approval to the Board on
June 24, 1993 along with the case file.
(h) The Board returned the case file to the
Advocate-on-Record on July 9, 1993 who re-sent
the same to the Board on September 20, 1993
requesting that draft SLP was not approved by
the Board. The Board after approving the draft
SLP sent this file to CAS on October 1, 1993."
After incorporating the above explanation, this Court
refused to condone the delay by observing thus:
"3. ... .... Having regard to the law of limitation
which binds everybody, we cannot find any way
of granting relief. It is true that Government
should not be treated as any other private
litigant as, indeed, in the case of the former the
decisions to present and prosecute appeals are
not individual but are institutional decisions
necessarily bogged down by the proverbial red-
tape. But there are limits to this also. Even with
all this latitude, the explanation offered for the
delay in this case merely serves to aggravate the
attitude of indifference of the Revenue in
protecting its common interests. The affidavit is
again one of the stereotyped affidavits making it
susceptible to the criticism that the Revenue
does not seem to attach any importance to the
need for promptitude even where it affects its
own interest.
23. In Pundlik Jalam Patil (dead) by LRS. vs. Executive
Engineer, Jalgaon Medium Project and Another, (2008)
17 SC 448, the question was whether the respondent-
Executive Engineer, Jalgaon Medium Project had
shown sufficient cause to condone the delay of 1724
days in filing appeals before the High Court. In para
17, this Court held:
".....The evidence on record suggests neglect of
its own right for long time in preferring appeals.
The court cannot enquire into belated and stale
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claims on the ground of equity. Delay defeats
equity. The court helps those who are vigilant
and do not slumber over their rights."
24. After referring various earlier decisions, taking
very lenient view in condoning the delay, particularly,
on the part of the Government and Government
Undertaking, this Court observed as under:-
"29. It needs no restatement at our hands that
the object for fixing time-limit for litigation is
based on public policy fixing a lifespan for legal
remedy for the purpose of general welfare. They
are meant to see that the parties do not resort to
dilatory tactics but avail their legal remedies
promptly. Salmond in his Jurisprudence states
that the laws come to the assistance of the
vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount
consideration in exercising the courts' discretion
wherever conferred upon it by the relevant
statutes. Pursuing stale claims and multiplicity
of proceedings in no manner subserves public
interest. Prompt and timely payment of
compensation to the landlosers facilitating their
rehabilitation/resettlement is equally an integral
part of public policy. Public interest demands
that the State or the beneficiary of acquisition, as
the case may be, should not be allowed to
indulge in any act to unsettle the settled legal
rights accrued in law by resorting to avoidable
litigation unless the claimants are guilty of
deriving benefit to which they are otherwise not
entitled, in any fraudulent manner. One should
not forget the basic fact that what is acquired is
not the land but the livelihood of the land-losers.
These public interest parameters ought to be
kept in mind by the courts while exercising the
discretion dealing with the application filed
under Section 5 of the Limitation Act. Dragging
the land-losers to courts of law years after the
termination of legal proceedings would not serve
any public interest. Settled rights cannot be
C/CA/3485/2019 ORDER DATED: 07/12/2021
lightly interfered with by condoning inordinate
delay without there being any proper
explanation of such delay on the ground of
involvement of public revenue. It serves no public
interest."
25. We have already extracted the reasons as
mentioned in the "better affidavit" sworn by
Mr.Aparajeet Pattanayak, SSRM, Air Mail Sorting
Division, New Delhi. It is relevant to note that in the
said affidavit, the Department has itself mentioned
and is aware of the date of the judgment of the
Division Bench of the High Court in LPA Nos. 418 and
1006 of 2007 as 11.09.2009. Even according to the
deponent, their counsel had applied for the certified
copy of the said judgment only on 08.01.2010 and the
same was received by the Department on the very
same day. There is no explanation for not applying for
certified copy of the impugned judgment on
11.09.2009 or at least within a reasonable time. The
fact remains that the certified copy was applied only
on 08.01.2010, i.e. after a period of nearly four
months.
26. In spite of affording another opportunity to file
better affidavit by placing adequate material, neither
the Department nor the person in-charge has filed any
explanation for not applying the certified copy within
the prescribed period. The other dates mentioned in
the affidavit which we have already extracted, clearly
show that there was delay at every stage and except
mentioning the dates of receipt of the file and the
decision taken, there is no explanation as to why such
delay had occasioned. Though it was stated by the
Department that the delay was due to unavoidable
circumstances and genuine difficulties, the fact
remains that from day one the Department or the
person/persons concerned have not evinced diligence
in prosecuting the matter to this Court by taking
appropriate steps."
and having regard to above mentioned fact, i.e. any
explanation with regard to above mentioned relevant period
is not offered by the applicants and any case much less
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sufficient cause to condone said delay is not made out, the
application cannot be and does not deserve to be
entertained.
17.1 In the result, we pass following order:-
[a] For the aforesaid reasons and in light of foregoing
discussion, this application is not accepted.
[b] Since the application for condonation of delay is not
accepted, consequently, the appeal fails.
[c] In light of the reasons for which the application is
not entertained and that the appellants opportunity
may not be closed for all times to come, we clarify it
would be open to the applicants to take out
appropriate application with sufficient details and
satisfactory explanation which constitute sufficient
cause.
[d] If and when such application is filed, it may be
considered independently on its own merits and in
accordance with law and this order will not stand in
way of the applicants. Present application accordingly
stands disposed off."
3. Thus, while rejecting the application, the Coordinate Bench
granted liberty to the applicants to take out appropriate
application with sufficient details and satisfactory explanation
which may constitute sufficient cause.
4. In view of the liberty reserved as referred to above, the
present application has been filed.
5. We have heard Mr.Tushar L.Sheth, the learned counsel
appearing for the applicants, and Mr.Pratik Y.Jasani, the learned
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counsel appearing for the opponent - original plaintiff (judgment
holder).
6. Nothing more has been done in the present application
than what was pointed out before the Coordinate Bench in the
Civil Application No.1057 of 2019.
7. We are of the view that no case is made out for
condonation of delay.
8. At this stage, we would like to observe that while hearing
an application seeking condonation of delay if the court finds
that the application is lacking in material particulars, then the
court may permit the applicant to file additional affidavit keeping
the application pending with a view to give an opportunity to
adduce satisfactory explanation which may constitute sufficient
cause. We do not approve the practice of reserving the liberty to
file a fresh appropriate application once having rejected the same
by assigning reasons in details.
9. With the aforesaid, this application fails and is hereby
rejected.
10. Since the application for condonation of delay itself is not
entertained and rejected, the connected First Appeal also would
not survive and the same stands disposed of accordingly.
(J. B. PARDIWALA, J.)
(NIRAL R. MEHTA, J.)
/MOINUDDIN
