Champavat Raghuvirsinh ... vs State Bank Of India
2023 Latest Caselaw 2886 Guj

      C/SCA/494/2023                                ORDER DATED: 12/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 494 of 2023

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                 CHAMPAVAT RAGHUVIRSINH GAMBHIRSINH
                                Versus
                         STATE BANK OF INDIA
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Appearance:
BINNI B DESAI(9072) for the Petitioner(s) No. 1
MR BOMI H SETHNA(5864) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 12/04/2023

                                 ORAL ORDER

1. Present petition is filed by the petitioner - original

defendant challenging the order dated 02.08.2022 passed

below Exh.6 in Civil Misc. Application No.2 of 2022 by the

learned 2nd Additional District Court, Sabarkantha at Idar,

whereby, the learned Court below has dismissed the

application for condonation of delay of two years and eleven

months occurred in filing the appeal.

2. The brief facts of the case are as under:-

2.1    It is the case of the petitioner - defendant that the






       C/SCA/494/2023                       ORDER DATED: 12/04/2023

petitioner had applied for a KCC loan of Rs.2,00,000/- on

30.06.2006 and the said loan application was granted on the

same date. The petitioner has executed necessary documents

to obtain loan on the condition that the petitioner has to pay

the loan at the end of the year alongwith the interest thereon.

It is further case of the petitioner that the property being

survey no.257 (old survey no.246) admeasuring 02 Hec.-60

Are - 03 sq.mtrs. land situated at village Hathoj valued at

Rs.2.60/- was mortgaged with the respondent - bank under

Section 5(1) of the Gujarat Agricultural Loan (Provision of

Facility) Act, 1979 and Rules, 1980. The mortgage entry was

entered in village form no.6 vide entry no.806 dated

19.06.2006 and the same is registered with the office of Sub-

Registrar at Idar.

2.2 It is the case of the petitioner that the petitioner was

negligent in a repayment of the loan amount and therefore,

the respondent - bank had issued noticed dated 02.06.2013.

The respondent bank had issued several notices to the

petitioner through learned advocate on various dates for

recovery of an amount of Rs.4,69,617/- alongwith the interest

C/SCA/494/2023 ORDER DATED: 12/04/2023

thereon.

2.3 The respondent - plaintiff has filed Regular Civil Suit

No.1 of 2017 for recovery of an amount of Rs.4,69,617/-, from

the petitioner - defendant on 20.03.2017. The learned

Principal Civil Judge, Vadali, Sabarkantha has passed

judgment and decree dated 21.02.2019 in favour of the

respondent - bank [plaintiff] and directed the petitioner to pay

the amount of Rs.4,69,617/- alongwith interest at the rate of

9% from the date of filing of the suit till its realization. The

learned Court further directed to the petitioner to pay the

decreed amount within period of 90 days and in case, the

petitioner fails to pay the same, the respondent bank would be

entitled to recover the amount by attaching and selling the

agricultural produce from the mortgaged property.

2.4. It is further case of the petitioner that being aggrieved

by the judgment and decree passed by the learned trial Court,

the petitioner has preferred appeal alongwith the application

for condonation of delay being Civil Misc. Application No.2 of

2022 before the learned 2nd Additional District Judge,

C/SCA/494/2023 ORDER DATED: 12/04/2023

Sabarkantha at Idar. The learned 2 nd Additional District Judge,

Sabarkantha at Idar has rejected the application for

condonation of delay on 02.08.2022 on the ground that the

Court has not find sufficient ground to condone the delay of

two years and eleven months. Hence, the petitioner is before

this Court by filing present petition.

3. Heard Ms. Binni Desai, learned advocate appearing for

the petitioner and Mr. Bomi Sethna, learned advocate

appearing for the respondent.

4. Ms. Binni Desai, learned advocate appearing for the

petitioner has submitted that the learned appellate Court has

not properly considered the facts and explanation given in the

application for condonation of delay. She further submitted

that the petitioner has categorically stated that he lost his

wife in the year 2016 and his daughter-in-law is suffering from

the disease of aids from the year 2016. She further submitted

that the petitioner has stated in the application that his both

sons' condition is not well as they are disabled and suffering

from intellectual disease and he is old aged person about 68

C/SCA/494/2023 ORDER DATED: 12/04/2023

years doing agricultural activities in the village. She further

contended that the petitioner has to look after all the

members of the family and their needs required to be fulfilled

by him, he could not approach the Court within reasonable

time. She further submitted that the judgment and decree is

passed in the month of February, 2019 and after that Covid-19

pandemic has erupted and therefore, he could not approach

the Court in time. Learned advocate further submitted that

the learned appellate Court has taken hyper technical view in

the matter and normally, the right of the parties should not be

suffered on the technical ground. Therefore, he has further

argued that appropriate order may be passed by allowing the

present petition and quash and set aside the order dated

02.08.2022 passed by the learned appellate Court.

5. Per contra, Mr. Bomi Sethna learned advocate appearing

for the respondent has strongly objected the submissions

made at the bar by the learned advocate for the petitioner and

has submitted that considering the gross delay caused in filing

the appeal, which cannot be said that believable justification

for causing of such huge delay given in the application for

C/SCA/494/2023 ORDER DATED: 12/04/2023

condonation of delay. Learned appellate Court has rightly

rejected the application for condonation of delay by giving

cogent and convincing reasons by way of well drafted and

therefore, he prays that no interference is required in the

order passed by the learned appellate court and therefore, he

further prays this Court to dismiss the present petition.

6. I have perused the averments made in the application

and I have perused the impugned judgment. Considering the

contents of the judgment, it transpires that the learned

appellate Court has not properly dealt with the reasons given

by the petitioner for causing the delay in filing the appeal. The

reasons, which are assigned are logical and probable, which

can considered as cause is made out and more particularly,

sufficient cause is made out for condonation of delay. It is

undisputed fact that the wife of the petitioner is expired in the

year 2016 and his daughter-in-law is suffering from the

disease of aids from the year 2016. It is also undisputed fact

that both son of the petitioner are disabled and suffering from

intellectual disease, moreover, petitioner is old aged person

about 68 years, residing in interior part of village. Considering

C/SCA/494/2023 ORDER DATED: 12/04/2023

the totality of the facts and circumstances, and considering

the fact that in the month of March, 2019 on-wards, the covid-

19 pandemic was erupted, this is a fit case where the court

should exercise the discretion in favour of the petitioner by

giving opportunity to proceed with the matter on merits, in

which the petitioner has challenged the impugned judgment

and decree passed by the learned appellate Court.

7. It is also beneficial to note that while considering the

application for condonation of delay, the Court has to consider

the provisions of Limitation Act in the facts and circumstances

of the each case. The limitation has got a specific purpose and

object and more specifically, to avoid prejudice to the

respective parties. Section 5 of the Limitation Act provides

sufficient cause is the only criteria for condoning the delay

because for which the party could not be guilt. It is also

further required to be noted that now law is well settled that

each day's delay should not be explained, but the petitioner

has to make sufficient cause for not filing such application

within period of limitation.

C/SCA/494/2023 ORDER DATED: 12/04/2023

8. Considering this aspect and considering the leading

judgment on this issue, which is reported in AIR 1987 SC

1353 in the case of Collector & Land Acquisition Vs. Mst.

Kathiji & Ors., where, it is now well settled that the Court

should not take pedantic approach while considering the

application for condonation of delay. Accordingly, the petition

deserves to be allowed by exercising my supervisory power

under Article 227 of the Constitution of India by quashing and

setting aside the order dated 02.08.2022 passed below Exh.6

in Civil Misc. Application No.2 of 2022 by the learned 2 nd

Additional District Court, Sabarkantha at Idar. The delay

caused in filing the appeal is condoned. It is further directed

to the learned 2nd Additional District Court, Sabarkantha at

Idar to hear and decide the appeal on its own merit as

expeditiously as possible, preferably within a period of one

year from the date of receipt of this order, by giving proper

opportunity of hearing to the parties in accordance with law.

Since the present petition is filed by the petitioner is allowed,

however, it is appropriate to impose the cost of Rs.5,000/- on

the petitioner, which the petitioner shall pay to the

respondent within 10 days by account payee cheque. The said

C/SCA/494/2023 ORDER DATED: 12/04/2023

cheque shall be deposited before the learned lower Court,

which in turn shall be paid to the present respondent.

9. With the above observations, the present petitioner is

allowed.

(SANDEEP N. BHATT,J) A. B. VAGHELA