Inde Enterprises Pvt. Ltd. vs State Bank Of Patiala

J.M. Malik, J

As prayed, Counsel for the parties heard on merits of this case. The appellant was proceeded against ex parte on 21.11.2008. The case of the appellant is that the petitioner M/s. Inde Enterprises Pvt. Ltd. is an incorporated company. It has set up a 100% export oriented unit to export its products to foreign buyers in the year 1996. The foreign purchaser was to remit the custom cleared invoices whose copies were to be despatched to the State Bank of Patiala and to the foreign collaborator of State Bank of Patiala. On 25.6.1996, the State Bank of Patiala had remitted payment of US $ 47458.40 to the petitioner on account of the export proceeds received by State Bank of Patiala from its foreign purchasers Bank in the account of the appellant transaction. The appellant could not pay off the debt.

The O.A. was filed against the appellant on 17.1.2000. The appellant filed the written statement through his Advocate, Mr. Akash Jain. Thereafter, the cast-was fixed for submissions of written arguments. In the meantime, Mr. Akash Jain, Advocate was appointed as Member of the Income Tax Appellate Tribunal. The appellant engaged a new Counsel by the name of Mr. Sumit Goel. The case was fixed for filing of written submissions on 21.11.2008. Mr. Sumit Goel, Advocate, did not appear. Thereafter, the appellant engaged another Counsel by the name of Mr. S.D. Bansal. Mr. S.D. Bansal, Advocate also did not appear and permitted the Court to proceed ex parte against the appellant. As such, the ex parte order was passed by the learned DRT on 28.5.2009 and the recovery certificate was issued on 8th July, 2009.

In the meantime, the Managing Director of the petitioner, Mr. Romesh Singhal came to know about the ex parte judgment during his visit to DRT on 3rd August, 2009. An application for setting aside the ex parte judgement and RC was moved before the learned DRT on 10th August, 2009.

In the meantime, the appellant moved before the Hon'ble High Court of Punjab and Haryana at Chandigarh which granted the stay subject to payment of Rs. 5 lakh which was duly paid by the appellant on 29.1.2010. Thereafter, the case was filed before this Tribunal and at the request of the Counsel for the appellant, the appellant was directed to deposit Rs. 3 lakh more which was also deposited by the appellant with the Bank.

After mulling over the record and having heard the Counsel for the parties I arrive at the following conclusion. The learned Counsel for the appellant submits that due to negligence and inaction on the part of appellant's Counsel Mr. Sumit Goel and Mr. S.D. Bansal, Advocate nobody could appear before the learned Trial Court.

I am not satisfied with the explanation put forward by the appellant. The Counsel for the appellant admits that no action has been taken against Mr. Sumit Goel, Advocate and Mr. S.D. Bansal, Advocate. Moreover, it is the duty of the appellant to keep abreast of all the dates given by the Court. The litigant is supposed to keep track of each and every date. He is not supposed to sleep and not to take care of his case. The appellant has itself to blame itself for the lackadaisical approach adopted by it. It tried to bury its head at its own peril. However, it is also well settled that the litigant should not be punished for the negligence, inaction and passivity on the part of his Counsel. In the celebrated authority reported in N. Bala Krishnan v. M. Krishanmurthy, : VII (1998) SLT 334= (1998) 7 SCC 123 it was observed:

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 v. Kuntal Kumari, : AIR 1969 SC 575 and State of West Bengal V. The Administrator, Howrah Municipality, : AIR 1972 SC 749. 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 Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite 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.

Although, the appellant has failed to explain the sufficient cause, yet, I hereby give an opportunity of being heard before the learned Trial Court subject to appellants' depositing certain amount and other terms and conditions. The Counsel for the appellant has offered to deposit Rs. 40 lakh without prejudice to his rights. On the other hand the Counsel for the respondent submits that the appellant should at least deposit Rs. 56 lakh including the principal amount and interest which would amount to 50% of the interest. It is not out of place to mention here that the total outstanding against the appellant including interest is stated to be more than rupees one crore.

Keeping in view their submissions I hereby direct that the appellant would deposit Rs. 45 lakh with the Bank without prejudice in two equal instalments. The first instalment would be payable within one month from today and the second instalment within two months from today failing which the order passed by the Trial Court would prevail. The parties are directed to appear before the learned Trial Court on 18th July, 2011 with the proof of deposit of 1st instalment. The learned Trial Court will try to expedite this case. As prayed the appellant is given last opportunity to file the written arguments or advance oral arguments on 18th July, 2011. Respondent will be entitled to file any rebuttal written/oral submissions. No further adjournment shall be granted. The arguments must stand concluded on 18th July, 2011 itself. The second instalment be deposited by 16th August, 2011 failing which the appeal shall stand dismissed. It is made clear that if the appellant wins the case he will get the entire payment made without prejudice from the Bank.

Appeal accordingly stands disposed of. Copies of this order be furnished to the parties as per law and one copy be sent to the learned DRT forthwith.