Bishnupada Ghosh vs State Bank of India

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

I.A. No. 487 of 2018

Heard the Learned Counsel for the parties. I.A. No. 487 of 2018 application under Section 5 of Limitation Act, 1963 read with Section 22(2)(g) of the Recovery of Debts and Bankruptcy Act, 1993 for condonation of delay of 306 days in filing the appeal. Opposition filed by the Respondents.

Heard the Learned Counsel for the parties and perused the record. Instant appeal is filed against an order dated 27th July, 2017 passed by Learned DRT-2 Kolkata. Appeal is filed on 3rd August, 2018.

At the very outset, it is to be observed that in the Application for condonation of delay only 306 days delay is sought to be condoned by the Appellant which is a wrong calculation. Instant Appeal is preferred against an order dated 27.07.2017. Appeal was filed on 03.08.2018. Application for obtaining the certified copy was filed on 28.08.2017 and the copy was prepared on 31.08.2017. Since the application for copy itself was filed after a lapse of 30 days, hence, Appellant cannot take any advantage of the time spent in preparation of the copy. Accordingly, now there is a delay of 371 days in filing the Appeal while Appellant has prayed for condonation of delay of 306 days which itself is misconceived and the Application for condonation of delay is liable to be dismissed on this ground alone.

However, apart from a calculation of time, the Application is moved on the ground of various ailments of the Appellant, his wife and son coupled with financial hardship. Learned Counsel for the Appellant would submit that the Appellant is an aged person of 59 years who was suffering from different ailments and was also facing financial crisis. So, he could not file the appeal in time.

Per contra, Learned Counsel for the Respondent opposes the prayer and submits that no sufficient cause is shown by the Appellant for condonation of delay. It is further submitted that a cryptic and vague ground is taken in Para No. 3 and 4 of the Application to the effect that Appellant along with his wife and son is suffering from different ailments and are facing financial hardship. It is further submitted that the impugned order dated 27.07.2017 has attained finality as the Appeal No. 14 of 2018 was filed challenging the impugned order dated 27.07.2017 by the Bank before the DRAT Kolkata which was partially allowed on 12.07.2019. Appellant herein had contested the Appeal.

In Pathapati Subba Reddy (died) by L.Rs. & Ors. Versus The Special Deputy Collector (LA) 2024 Live Law (SC) 288 Hon’ble Apex Court has placed reliance upon a judgment reported in Basawaraj and Anr. Vs. Special Land Acquisition Officer (2013) 14 SCC 81 wherein in Para No. 23 it was held that-

“ This Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression ‘sufficient cause’ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.”

Further, Hon’ble Apex Court has placed reliance upon Para No. 12 and Para No. 15 of the judgment Basawaraj and Anr. Vs. Special Land Acquisition Officer (supra) which is as under:

“12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from it operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.”

“15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the Court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for what of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”

(emphasis supplied)

In Para No. 26 Pathapati Subba Reddy (died) by L.Rs. & ors vs. The Special Deputy Collector (LA) ( supra) Hon’ble Apex Court held that-

“On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”

In the present case some prescriptions have been annexed along with the Application wherein a bare perusal will show that these prescriptions relate to some ailments of cervical spondylisis wherein nowhere bed rest was advised by the doctor. Further, these prescriptions are much before passing of the impugned order. They are of 2014 and 2015. There are 3, 4 prescriptions of 2017 and 2018. Even in those prescriptions nowhere any such diagnosis is made by the doctor that the Appellant could not move. Further, no such ground is made in the application itself as to what is the ailment of the Appellant due to which he could not contact his lawyer or file the Appeal. Further a vague plea of financial hardship is taken without any material record. Accordingly, I am of the considered opinion that appellant failed to show any sufficient cause for condonation of delay. There is an inordinate delay in filing the appeal which is not satisfactorily explained. No due diligence is exercised by the Appellant in pursuing the appeal.

Having considered the submissions, I do not find any ground to condone the delay in filing the appeal. Accordingly, I.A. No. 487 of 2018 is devoid of any merit and is liable to be dismissed. Consequently, Appeal is also dismissed being time barred.

ORDER

I.A. No. 487 of 2018 under Section 5 of Limitation Act is dismissed. Consequently, Appeal is dismissed being time barred.

No Order as to costs.

File be consigned to Record Room.

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

Order pronounced by me in the open Court today i.e. on 19th June, 2024.