Indian Overseas Bank vs Getwin Enterprises and Others

Hemant Gupta, J.—The challenge in the present revision is to the order dated 11.9.2003 whereby the appeal filed by the petitioner was found to be not maintainable being time barred.

The suit for recovery filed by the petitioner was decreed by the learned Trial Court on 30.11.1999. However, the learned Trial Court has given six months time to pay the decretal amount failing which the decretal amount shall be recovered by auctioning the mortgaged property. But the said operative part of the judgment failed to pay any interest on the decretal amount although the finding regarding interest was returned in favour of the plaintiff while dealing issue No. 3.

Since the learned Trial Court has not granted interest in concluding part of the judgment, the plaintiff moved an application on 17.12.1999 for modification of the judgment so as to include the grant of the interest. The said application was dismissed by the learned Trial Court on 10.6.2002. Thereafter, the appellant-petitioner filed an appeal on 24.7.2002 along with an application u/s 5 and 14 of the Indian Limitation Act. 1963 for condonation of delay in filing of such appeal.

The learned District Judge dismissed the application for condonation of delay on the ground that the petitioner has not shown any sufficient or reasonable cause explaining delay from 11.6.2002 to 24.7.2002 except pleading that the Courts were closed from 16.6.2002 to 15.7.2002.

It has been found by the learned Appellate Court that the appeal could be filed by 14.1.2000 but before the limitation to file the appeal could expire, the petitioner has sought review by moving an application on 17.12.1999. The said application was decided only on 10.6.2002. The period from 11.6.2002 to 24.7.2002 is not such period which show that there was total inaction on behalf of the petitioner so as to infer that the petitioner was giving up his right to avail the remedy of the appeal. It has been held in the judgment of the Hon''ble Supreme Court reported as N. Balakrishnan v. M. Krisnamurthy 1999(1) CCC 12 (SC), if the explanation does not made of mala fides act is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the matter.

Keeping in view the principle laid down in the aforesaid judgment, I am of the opinion that the delay from 11.6.2002 to 24.7.2002 was not to such an extent which can lead to an inference that the Bank was adopting dilatory strategy.

Consequently, order dated 11.9.2003 is set aside. The delay in filing of the appeal is condoned. Appeal is ordered to be decided by the learned District Judge, Faridabad on merits in accordance with law,

Parties through their Counsel are directed to appear before the District Judge, Faridabad on 6.3.2006 for further proceedings in accordance with law.