M/s Nsdoor Goat Farm and Others vs SYNDICATE BANK on 28 November 2019

**FINAL ORDER**

1. 1. The applicants have filed application U/s.5 of Limitation Act, to condone the delay of 60 days in filing the Miscellaneous Appeal.

2. 2. The 2^nd applicant has sworn to an affidavit in support of the above IA., for his behalf and on behalf of applicants No.3 and 4, wherein, he has stated that, they have filed application for setting aside the ex-parte award in OA No.11/2018 passed on 30/03/2019. He has stated that, they should have filed application within 30^th April, 2019 for setting aside the award. He has stated that, the applicant Nos.2 and 3 are the legal heirs of the borrower and applicant No.1 is the guarantor and they are permanent residents of Mumbai of Maharashtra, and have been engaged in business of infrastructure work and tunneling. Their father who was the main borrower resided at Nadoor Village of Udupi, and loan was availed by their father for the purpose of farming activities. The deceased father of applicants No.2 and 3 was paying loan amount regularly and had good relation with the bank for more than 4 decades. On 05/07/2015, their father became bed-ridden due to **HACVAY** stress and pressure and survived till 12/10/2018. He was admitted in Adarsh Hospital in Udupi and later died. The respondent bank had filed OA No.11/2018 on or about 23/03/2018 and the deceased father of applicants No.2 and 3 was not present at the given address due to hospitalization, and therefore the matter was entrusted to one Mr.Madhavarao who was known to them as ex-employee of Syndicate Bank to look after. Since the applicants No.2 and 3 had to attend their father at Mumbai, the matter was entrusted to Mr.Madhavarao who assured that proper action will be taken and an advocate was also appointed to look after the case. Since the health condition of the father of applicants No.2 and 3 deteriorated, they had to attend him and also their business at Chennai and Orissa and ultimately their father died on 12/10/2018. They kept quiet on account of demise of their father and assurance was given by Mr.Madhavarao about conducting of the case. He has further stated that on or about 10/06/2019 when the applicant No.2 called Mr.Madhavarao and they were informed that, if they pay Rs.5 lakhs to the bank the matter could be delayed. The applicants became suspicious about Mr.Madhavarao and their advocate Mr.Reddy and through some other advocate, they came to know about the order passed against them. They came to know that, Mr.Madhavarao has not filed Vakalathnama or written statement. They were not served with summons, and therefore, due to the above said reasons, they were prevented from appearing before the Tribunal and they have sufficient cause for the delay in filing the appeal. They have stated that, though the applicants No.2 and 3 are the guarantors and they are the legal heirs of applicant No.1 and they will suffer great harm, loss or injury if decree is passed against them. Accordingly, they have prayed for allowing the application.

3. The applicants have filed memo on 18/11/2019 with four documents to support their contention that, proprietor of defendant No.1 Late Jayakar C.Karianna was hospitalized prior to his demise on 12/10/2018.

4. The respondent bank has filed objections denying each and every allegation made by the applicants in their affidavit regarding ill-health of their father, entrustment of case to one Mr.Madhavarao, his failure to conduct the case properly and they have got sufficient cause. In Para No.10, the applicant bank has stated that, the defendant Nos.1 to 4 were served with summons by registered post and the service of applicants No.1 and 4 entered in the order-sheet and applicants No.2 and 3 have been duly represented through their advocate who filed memo of appearance on 02/05/2018. The applicants neither filed *Vakalat* nor written statement and kept on seeking time for filing written statement and ultimately by rejecting the prayer, the case was posted for applicant bank's evidence. Even after recording of evidence and when the case was posted for argument on 14/03/2019, the applicants have not made any attempt to file the written statement. The applicants have not made out sufficient cause for filing the above application to condone the delay. The huge amount is due to the applicant bank and in order to avoid payment, the present application is filed. Accordingly, it has prayed for rejecting the application.

5. Heard learned counsels for the applicants and applicant bank.

6. The points that would arise for my consideration are:

1) Whether the applicants have made sufficient cause to condone the delay in Miscellaneous Appeal filed against the order in OA No.11/2018?

2) What order?

7. My answer to the above points is as under:

1) In the Negative

2) As per final order for the following

REASONS

8. **Point No.1.** The learned counsel for the applicants hereinafter called as the defendants No.2 to 4 for brevity, would argue that, since the father of applicants No.2 and 3 and husband of 4^th defendant fell ill, they had to attend their father by admitting him into the hospital at Udipi. Later their father died on 12/10/2018, and according to them, he has been bed-ridden since 2015. Though there is no dispute about death, the applicants have failed to show when exactly they were prevented from appearing before the Tribunal to prosecute the case. The learned counsel for the applicants would further argue that, since applicants No.2 and 3 were busy in attending their father as well as their business at Chennai and Orissa, they have not produced a piece of paper to prove the same. No doubt, there may not be dispute about the death of first applicant/defendant. If they were vigilant in prosecuting the case when the claim is more than Rs.10 Crores, they would have made proper arrangement for prosecuting the case if at all they had good case in the original OA. The learned counsel for applicants would argue that, the OA was filed and it was allowed on 30/03/2019. The order-sheet in OA No.11/2018 reveals that the OA was registered on 04/01/2018 and after hearing on IAs, summons were issued and the case was posted for appearance of the defendants on 16/03/2018. On 16/03/2018 when the case was called, the defendants No.1 and 4 were served and the summons were issued to defendants No.2 and 3 to appear on 02/05/2018. The alleged date of appearance of defendants No.2 and 3 was on 16/03/2018 and defendant No.1 died on 12/10/2018

much later and the documents produced by applicants are photos showing that, Late Jayakar C. Karianna is in hospital bed and discharge summary. When defendants No.2 and 3 were able to move on their business throughout India, the allegation that they could not make proper representation and entrusted the matter to one Mr.Madhavarao is a cock and bull story. After re-issue of summons defendant No.3 was served and his counsel one Mr.Ashwath Reddy undertook to file *Vakalat* for defendants No.2 and 3 on 02/05/2018. Thereafter, defendant No.3 was served, no arrangement was made to file *Vakalat* and written statement. Again the matter was heard regarding attachment of properties and said order was also served on defendant No.4 on 03/01/2019. A Memo was filed stating that, defendants No.2 and 4 are the legal heirs and the matter was proceeded with. Therefore, one thing is clear in the order-sheet that, right from the service of summons to the defendants, they kept quiet. Though the defendants No.1 to 4 have filed certain photographs and documents to show that their father was seriously ill and bed-ridden, still what prevented the defendants No.2 to 4 from filing their written statement. When they were able to move throughout India for their business as contended in their objections, then the above documents are of no help to condone the delay. The death certificate is not sufficient to show that he died due to ill-health. The death certificate does not reveal that he died in the hospital after his admission to hospital as contended.

9. Under Section-5 of the Limitation Act, each day's delay has to be explained so as to condone the delay. The in-action on the part of the defendants in prosecuting the case and failure to show the sufficient cause, I am of the view that, they have not made out the case for condonation of delay. It is not their case that they were not served with summons which is one of the grounds to set aside an ex-parte order. In view of the above fact, I am of the view that, the applicants have not made out any grounds to condone the delay so as to register the case after 60 days. Moreover, the amount involved is more than Rs.10 Crores and they were not serious and vigilant in the matter of payment of loan amount. Hence, I answer the Point No.1 in the Negative.

10. **Point No.2:** For the aforesaid reasons, I proceed to pass following:

Diary No.1570 of 2019**ORDER**

I.A.No.1528/2019 for condonation of delay is dismissed.

Consequently, Diary No.1570 of 2019 is also dismissed.

There will be no order as to costs.

(Dictated to the Steno, transcribed by him and after necessary corrections, signed and pronounced by me in the Open Court on this the 28th day of November, 2019)

**K. RAVINDRAN NAIR** **Presiding Officer** **I/c.DRT-II, Bengaluru**

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