Haryana State Industrial And Infrastructure Development Corporation Ltd vs State Bank Of Bikaner & Jaipur & Others

Ranjit Singh, J

The appellant HSIIDC has filed this appeal to challenge the order passed by the Tribunal below in the O.A. filed by the respondent Bank. This appeal came up for hearing for the first time on 30.12.2014. After arguing for some time, the Counsel for the appellant prayed for time to place on record the order passed in S.A. No. 103/2011. For this purpose, one month's time was allowed and the case was adjourned for 29.1.2015.

On this date, no action was taken to place on record the above-said order. Still, a last opportunity was allowed to the appellant subject to payment of Rs. 2,000/- as costs. The case was then adjourned to 20.2.2015. On this date, the Counsel appeared before the Tribunal and stated that he did not wish to place on record any additional document. Rather the Counsel conveyed that the appellant had declined to deposit the cost which was imposed on 29.1.2015. Seeing this attitude and the defiant conduct of the appellant, this Tribunal formed a view that the appellant cannot be permitted to prosecute the appeal and dismissed the same by referring to the provisions of Section 35-B of the CPC.

An application has now been filed by the appellant for restoring the appeal stating that the appellant has now been able to trace the order passed in S.A. and that the non-payment of the cost by the appellant was most unintentional. It is also stated that the cost has been paid in compliance of the order passed by this Tribunal. Plea is that the delay in complying the order was bona fide and unintentional. The prayer is for restoring and hearing the appeal on merit.

The appeal was dismissed by invoking the provisions of Section 35-B, CPC which provides that if on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit fails to take the step which he was required by or under this Code to take on that day, then the Court may, for the reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date. Nonpayment of costs, rightly or wrongly imposed, prohibit further prosecution of the suit. This provision may be directory but it cannot to mean that the party against whom the costs are awarded is to be given a long rope to keep the proceedings deferred. The enlargement of time can be granted only in cases where the Court is satisfied that the default is not wilful or the conduct is not contumacious. This Tribunal may not be bound by the provisions of CPC but can adopt the principles laid down in CPC. The appellant could have avoided this extreme penalty but for his defiant conduct.

This provision otherwise has been held to be mandatory. Where the costs are not paid as a result of circumstances beyond the control of the defaulting party, the Courts can always exercise jurisdiction to enlarge the time [See Anand Prakash v. Bharat Bhushan Rai, AIR 1981 P&H 269].

In this case there was no challenge made to the order imposing the costs. There was no prayer made before this Tribunal that the cost as imposed on 29.1.2015 could not have been so imposed. No prayer was made for enlarging the time to pay the cost. The appellant had adopted defiant stance in declining to obey the directions of the Tribunal. Since the cost had been imposed, which was not challenged, the appellant could be permitted to prosecute this appeal only in case it had deposited this cost.

The Counsel for the appellant today would submit that hearing in this case has not commenced and there is no other party. The plea is that the cost, which was imposed, could not have been imposed. Though this is so submitted orally, but no such plea is raised in the application.

The submission that the provisions of CPC would not be attracted or apply rather would go against the submissions so made by the appellant. If the provisions of Section 35-B, CPC are not to apply, then obviously this Tribunal would have independent power to impose cost and thus the plea of the appellant would be liable to be negated on this ground as well. As already held the principles can always be adopted.

The position that would emerge is that in the event of party failing to pay the costs, it is mandatory for the Court to disallow prosecution of the suit or the defence, It may therefore be even debatable if the application for restoring the appeal would a proper remedy. I am otherwise not convinced with any of the pleas made by the Counsel for the appellant and thus would dismiss this application.