SHYAM COT SPIN vs BANK OF BARODA on 1 January 2021

DEBTS RECOVERY TRIBUNAL, JABALPUR SITTING AT CUTTACK ORDERSHEET APPLICATION FOR CONDONATION OF DELAY (Arising out of OA No.-603/2018)

<table border="1"><thead><tr><th>Sl. No.</th><th>Date of order.</th><th>Order with the signature.</th><th>Action (if any) taken on the ord</th></tr></thead><tbody><tr><td></td><td>01.01.21</td><td><p>This petition has been filed by the petitioners/defendants for condonation of delay in filing the application for setting aside the impugned judgment and order dated 04.01.2019 in OA No.603/2018.</p><p>In the petition it is mentioned that In the petition it is mentioned that the applicants had filed S.A. No.322/2017 M/s. Shyam Cot Spin Vs. Bank of Baroda before this Hon'ble Tribunal. The said Securitisation Application was finally allowed by order dated 30.10.2018 and the action of the bank initiated under provisions of 2002 Act was set aside. During regular course of inter-action with the respondent/Bank the applicant No.3 had come to know that the respondent/Bank had also filed an Original Application No.603/2018 under Section 19 of Debts of Recovery and bankruptcy Act, 1993 for recovery of an amount of Rs.4,25,95,514.68 together with interest and cost. This information was gathered by the applicant No.3 on 24.07.2020.</p><p>The applicant No.3 had come to Jabalpur on 27.07.2020. He contacted his lawyer at Jabalpur and took inspection of record of the aforesaid original Application in the office of this Hon'ble Tribunal and found that an ex parte judgment and order was passed on 04.01.2019. Immediately thereafter the applicants submitted an application for grant of certified copies of the entire order sheets as also the judgment and order dated 04.01.2019, which were supplied to the applicants on 08.08.2020</p></td><td></td></tr></tbody></table>

<table border="1"><tr><td></td><td></td><td><p>From perusal of the aforesaid order-sheet the applicants had come to know that the Original Application No.603/2018 was filed on 29.05.2018. The notices sent to the applicants were returned un-served and this is so mentioned in the order sheet dated 03.08.2018. Thereafter, a publication was made in the local newspaper and since the applicants did not appear, therefore, they were proceeded ex parte on 04.01.2019, which were supplied on 18.08.2020 and immediately thereafter applied for certified copies of the entire order sheets as also the judgment and order dated 04.01.2019 and the above application was got prepared and same is being filed on 20.08.2020 and thus caused delay on account of the aforesaid reasons.</p></td></tr></table>

<table border="1"><tr><td></td><td></td><td><p>Counsel for the Applicant Bank filed objection and contended that the applicants have also moved an application for stay of judgment dated 04.01.2019 and e-auction notice dated 23.10.2020. Counsel for the Applicant Bank filed objection and contended that the applicants are building a false story that they came to know about OA No.603/2018 during regular course of interaction with the bank. For their convenience, they are mentioning the date of information as 24.07.2020.</p></td></tr></table>

<table border="1"><tr><td></td><td></td><td><p>Further the applicants are making a false story about their non-resident but in fact they have not made changes in their KYC documents and in bank's formalities. They cannot take shelter of their other proceedings. Applicants are still showing the same address of their registered office and it is the same address which is reflected in all other IDs of the applicants. As such the applicants want to evade the recovery by not paying single pie and therefore, making such</p></td></tr></table>

efforts just to frustrate the recovery. The judgment in OA No.-603/2018 was pronounced on 04.01.2019 and as per the practice and procedure of this Tribunal, the judgment dispatches to the concerned parties. It appears that the affidavit was sworn on 20.08.2020. As such there is delay of 20 months which cannot be condoned. The delay of each day has to be explained which is not done by the applicants.

In the facts and circumstances there being no merit, the application for condonation of delay deserves no consideration and thus is liable to be rejected with costs.

Heard the learned Counsel for the parties at length and have perused the materials on record.

Admittedly, an ex-parte judgment has been passed against the defendants on 04.01.2019 in OA No.603 of 2018.

The power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to the parties by disposing of the matters on merit.

The Hon'ble Supreme Court in catena of decisions had held that the purpose of Limitation Act was not to destroy the rights but it is founded on public policy fixing a life span for the legal remedy for the general welfare. 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 bad cause would transform into good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation for condonation of delay does not smack malafides or is not shown to have been put forth as a part of dilatory strategy the Court must show utmost consideration to the suitor.

**AIR 2011 SUPREME COURT 1150**

***Parimal v. Veena***

**(A) Civil P.C. (5 of 1908), O.9 R.13- Setting aside ex-parte decree – Expression 'sufficient cause' – Meaning – Sufficient cause is the cause for which defendant could not be blamed for his absence.**

**Words and phrases – 'Sufficient cause' – Meaning.**

The meaning of the word "sufficient" is "adequate" "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in case and duly examined from the view point of a reasonable standard of cautious man. In this context, 'sufficient cause' means that party had not 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 the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion it has to be exercised judiciously.

In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the @page-SC1151

Defendant could not be claimed for his absence. Therefore, the applicant must approach the Court with a reasonable defence. Sufficient cause is a question of fact and the Court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.

1993 AIR SCW 1178

Salil Dutta Appellant v. T.M and M.C. private Ltd Respondent.

Civil P.C. (5 of 1908), 0.9 R. 13 – Ex-parte decree – Setting aside of – Absence at final hearing attributed to Counsel's advice – Defendant, business firm managed by educated businessmen – in reality defendant getting piqued by Court's refusal to decide its applications before final hearing and choosing to non-cooperate with Court by not appearing before it – cannot Seek Courts indulgence.

@page-SCW1179

Decision of Calcutta High Court, D/3-3-1992, Reversed.

The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. (Para 8)

Where the suit in which ex parte decree was passed was an on-going suit posted for final hearing after a lapse of seven years of its institution and the defendant was not a rustic ignorant villager but a private limited company with its head office at the place where the Court was located and managed by educated businessmen who knew where their interest lay and it was evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear, before the Court chose to non-cooperate with the Court by not appearing before the Court, they having adopted such a stand towards the Court, had no right to ask its indulgence and seek setting aside of ex parte decree passed against them. In such a case, putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings was a theory which ought not to have been accepted.

I. R. 1918 Calcutta 53

FLETCHER AND SHAMSUL, HUDA, JJ.,

Iswar Chandra Kapli – Defendant –Appellant.

v.

Arian and another – Plaintiffs – Respondents.

Appeal No. 606 of 1916, Decided on 12^th March 1918, from appellate decree of Dist, Judge, Mymensingh, D/- 30^th April 1915.

(a) Practice – Ex parte hearing –Party making ex parte application must call attention of Court to matters for and against – Order extending time for filing appeal can be cancelled by same Court – Limitation Act (9 of 1908), S. 5.

When an ex parte application is, made, it is the duty of the party making the application to call the attention of the Judge not only to the portion of the law or authority in favour of his case but also to the matters that are against him.

On an ex parte application made to the District Judge, asking him under the provisions of S.5, Lim. Act, to extend the time for filing an appeal and to give the appellant time for the purpose of paying the court. Fees, the Judge made an order that time would be extended. But subsequently and before the memo of appeal had in fact been admitted, he re-considered his order and revoked it; Held: that the Judge had ample authority under the law to revoke or alter his previous order at any time before the appeal was admitted .

[P 54 C 2]

(b) Limitation Act, (1908), S. 5 – Sufficient cause- Mistake of legal adviser – Proof of bona fide mistake must be furnished.

Before an extension of time can be granted under S. 5 on the ground that the appeal has been filed beyond time owing to a mistake made by the legal adviser of the appellant, there must be proper evidence establishing that mistake was committed and that it was a bona fide one."

Considering the facts and circumstances of the present case in the parameter of the decision noticed in the preceding paragraphs and the contentions raised in the petition and in the objection and with the object of doing substantial justice to the parties concerned, In the given circumstances of the case I hold that sufficient cause has been made out by the petitioner defendants to condone the delay in filing MA for setting aside ex-parte order and as such application for condonation of delay is allowed Registry is directed to issue free copy of this order to both the Counsels.

(P. Ravikiran) B.Com., M. L. Presiding Officer Debts Recovery Tribunal, Cuttack in charge of Debts Recovery Tribunal, Jabalpur(M.P.)