Anil Sharma vs Union Bank Of India And Ors.

J.M. Malik, J

This order shall decide the application under Section 5 read with Section 17 of the Limitation Act filed by the appellant seeking condonation of delay in filing the appeal. There is no conflict on the point that this litigation had a chequered history before several Fora including the Apex Court. The appellant, who was arrayed as defendant 4 in the O.A., has called into question the recovery certificate issued against him. The learned trial Court, vide order dated 11.12.2000, had issued a recovery certificate in the sum of Rs. 98,78,592/- together with pendente lite and future interest @ 21.75% p.a. with quarterly rests from the date of filing of the O.A. on 9.9.1997 till realization, and costs against the appellant and three others and in favour of the 1st respondent Bank herein.

Previously, the appellant Mr. Anil Sharma had filed an appeal in respect of the orders passed by the lower Court, dismissing his application under Order 9 Rule 13, CPC and the application for review. This Court, vide order dated 8.7.2010, dismissed the said appeal and upheld the ex parte order passed against him by the Tribunal below. In this appeal, the appellant has challenged the final order passed by the learned DRT on 11.12-2000 on various grounds.

As a matter of fact, against the order dated 8.7.2010 passed by this Tribunal, the appellant had approached the Hon'ble High Court by way of a writ petition. Hon'ble High Court dismissed the said writ petition, but observed:

At the outset, the learned Counsel for the petitioner sought to challenge the merits of the ex parte decree by contending that the petitioner had resigned from the respondent No. 2 company and, therefore, was not liable and also that the petitioner had stood only guarantee under one document and which amounts stood paid off. We made it clear to the learned Counsel that the scope of the present petition is confined to challenge to the impugned orders and the issue therefore only would be as to whether or not the petitioner was duly served in the proceedings before an ex parte decree was passed. We further made it clear to the Counsel that if the petitioner wanted to challenge the ex parte decree on merits, then, in accordance with law, an appeal would have to be filed against the ex parte decree dated 11.12.2000 for Rs. 98,78,592/-along with pendente lite and future interest.

Aggrieved by that order, an S.L.P. was preferred before the Hon'ble Supreme Court. The Hon'ble Supreme Court while disposing of the said S.L.P. on 3.12.2010, ordered:

Heard Counsel for the petitioner.

We are not inclined to interfere in this matter in exercise of the Court's jurisdiction under Article 136 of the Constitution. The special leave petition is dismissed.

The learned Counsel for the appellant submitted she has challenged the ex parte decree on the basis the observation made by the Hon'ble High Court referred to above.

In the application for condonation of delay, the following averments have been made. The applicant came to know about the above said decree only on 15.9.2002 when a local police officer came to the appellant's house with summons issued by the Recovery Officer. Thereafter, the appellant moved an application for setting aside the ex parte decree before the Tribunal below, but the same was dismissed on 31.10.2002. The review petition filed thereafter also met with the same fate on 26.11.2002. Aggrieved, appellant filed an appeal before this Tribunal and thereafter the matter went up to the Hon'ble Supreme Court.

The present appeal has been filed on 28.4.2011 along with this application for condonation of delay in filing the same. The application was contested by the Bank.

I have heard the Counsel for the parties. The learned Counsel for the appellant vehemently argued that the appellant was pursuing legal remedies available to him in different Fora including the Hon'ble Supreme Court, after the dismissal of his appeal by this Court. She contended that delay in filing the appeal occurred due to the said circumstances. It was also contended that the appellant has got a very strong case on merits and he has been shown as a guarantor only for the repayment of the loan in question. She prayed that in the interest of justice and in view of the observation made by the Hon'ble High Court, the delay in filing the appeal be condoned. She though pleaded that the appellant is an impecunious man, yet, offered to deposit a sum of Rs. 1 lakh with the Bank, which could be adjusted towards the outstanding dues, for condoning the delay. She pointed out that she has also moved an application for waiver of pre-condition under Section 21 of the RDDBFI Act.

I have gone through the record. A bare look on the record clearly goes to show that the appeal is hopelessly barred by time. There is a delay of 3745 days. In Para 14 of my order dated 8.7.2010, I had made the following observation: "Under the circumstances, the Court is left with no option but to assume that the service was affected on the appellants. The appellants have failed to produce any evidence in rebuttal of the above said assumption. The said findings stand upheld by the Hon'ble High Court as well as the Hon'ble Supreme Court.

Moreover, the writ filed by the appellant was dismissed by the Hon'ble High Court on 14.9.2010 with the observations referred to above. The appellant did not file appeal immediately thereafter and leisurely filed it after more than seven months. Again, the S.L.P. filed by the appellant was dismissed on 3.12.2010. Even thereafter it took four months for the appellant to file the present appeal. It is thus clear that the appellant was not diligent enough in filing the appeal.

The appellant can challenge the final order only on the basis of documents already available on the record. He cannot lead any evidence or again request the Court to try the case, which would tantamount to setting the ex parte order aside.

It is surprising to note that the respondent, Union Bank of India, has not taken any step to recover the outstanding dues even after the dismissal of the S.L.P. of the appellant as back as on 3.12.2010.

It must be borne in mind that the original decree was passed as back as on 11.12.2000 for an amount of Rs. 98,78,592/- along with interest and costs. This amount might have increased by leaps and bounds in the last 11 years. Keeping in view all the facts and circumstances as also keeping in view the observation made by the Hon'ble High Court while dismissing the writ petition filed by the appellant, in the interest of justice, I condone the delay subject to the appellant's depositing with the Bank Rs. 5 lakh, without prejudice to the rights of the parties. The said deposit be made within four weeks from today, and would be adjustable towards the outstanding dues of the Bank. Let the matter come up on 24.6.2011 for overseeing the compliance of this order and for arguments on admission and waiver application. It is made clear that in case the appellant fails to comply with this order, this Court will be constrained to dismiss the appeal as time-barred.