INDUSTRIAL DEVELOPMENT BANK OF INDIA LTD vs JARANDESHWAR SAHAKARI SAKHAR KARKHANA LIMITED on 15 March 2024

1. By way of the present MA, the Applicant has prayed to condone the delay which occasioned in preferring the present application and after condoning the delay occasioned, be pleased to recall the order dated 09.07.2012, whereby the OA No.208/2004 was dismissed and the said OA No.208/2004 be restored to file and decided on merits.

2. Ld. Counsel for the Applicant has submitted that the matter was posted for orders on 25.01.2010, thereafter for 19 dates the matter was adjourned simpliciter, for the reason that either the PO was on leave, or the order was not ready and it reveals from the record that on 22.02.2012, the Respondent No.2 filed affidavit, indicating that the mortgaged property has been sold under the Securitization Act, therefore, this Tribunal directed to the Respondent No.3 to serve the copy of the said affidavit to the Applicant and file proof of service, however, the record of OA fails to show any proof of service on the Applicant by the Respondent No.3. Further, he submitted that OA alongwith the record of other cases of the Applicant, came to be transferred from the NMG Office at BKC, Bandra to the NMG Office at Pune in the end of the year 2019, whereupon, the details of the above case came to light. Immediately, the representative of the Applicant applied for the certified copy of the record of the above proceedings and in pursuance thereof, it came to know that the present OA was disposed of vide order dated 09.07.2012.

3. In support of his contention, Ld. Counsel for the Applicant has relied upon the judgments of Hon’ble Supreme Court in Senior Bhosale Estate (HUF) Vs. Assistant Commissioner of Income Tax,

SCC 613; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123; and Collector Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Others (1987) 2 SCC 107.

4. Record reveals that despite service, none appeared for the Respondents.

5. Heard Ld. Counsel for the Applicant and gone through the record.

6. Having regard to the facts and circumstances, which were prevalent at the relevant time, it appears that the Applicant has made out a sufficient cause for condonation of delay and not appearing before this

Tribunal when the case was dismissed for non-prosecution. Further, this Tribunal granted several opportunities to the Respondents however, despite opportunities, neither they appeared nor filed any reply to the MA. The assertions of the Applicant in this regard have, therefore, remained unrebutted.

7. In N. Balakrishnan (supra), the Hon’ble Supreme Court has held that: “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 want of acceptable explanation whereas in certain other cases delay of 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 and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut 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 untrammeled 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. 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. Rule of limitation are not meant to destroy the right 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. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. 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 putt to litigation). Rules of limitation are not meant to destroy the right 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.

12. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749].

13. 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 a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

14. In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Ridressal Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date).” (emphasis provided)

8. Therefore, in view of the above dictum of the Hon’ble Supreme Court and also considering the facts of the present case the present MA is hereby allowed and OA No.208/2004 is hereby restored against Respondent No.2 to 6 herein.

9. Insofar as the Respondent No.1 is concerned, during the pendency of the MA, the Ld. Counsel for the Applicant has informed that the Applicant will not proceed with the MA against Respondent No.1 as Respondent No.1 no longer exists. Therefore, the present MA as well as OA will not be proceeded against Respondent No.1.

10. With the above said direction, the present MA is disposed off.

11. File be closed and consigned to the record room. PO DRT-I