Mohan Sales (India) And Ors. vs Bank Of Baroda

Ranjit Singh, J

This appeal is filed against the order passed by the DRT-III, Delhi allowing the O.A. of the bank and holding the appellants and other defendants jointly and severally liable to pay the amount of Rs. 24,79,516.36 along with pendente lite and future interest @14% p.a. besides costs and incidental expenses. The appellants were directed to pay the amount within 30 days, failing which it was ordered to be recovered from the sale of the personal assets of the defendants. Against the impugned order passed on 26.6.2012, the present appeal is filed by the appellants on 12.11.2012. Thus, this appeal is filed with a delay of 87 days. An application for seeking condonation of delay has also been filed along with the appeal. There is another application filed seeking waiver of pre-deposit.

Notice in the application for condonation of delay was issued on 6.12.2012 and thereafter the case was adjourned from time-to-time The delay has not yet been condoned. The appeal thus is also not registered and is having an Inward No. 672/2012. Since the application for condonation of delay was pending for quite a long time. I thought it appropriate to hear the Counsel on merit as well while considering the prayer for condoning the delay. This course was adopted to avoid any further delay. In this context, the Counsel are first heard on the application seeking condonation of delay.

To seek condonation of delay in filing the appeal, it is averred that the Tribunal below after hearing the arguments, had observed that the order would be passed during the course of the day. The Advocate representing the appellants left for summer vacations and thereafter resumed his work some time in the middle of July 2012. It is stated that appellant No. 2 on inquiry made from the advocate learnt that the O.A was allowed. He then applied for certified copy of the order on 1.8.2012. It is further stated in the application that the Advocate could not enquire from time-to-time because of his continuous illness as he was suffering from jaundice and he could collect the copy of the impugned order only on 17.9.2012. It is stated that the appellants were under confusion that the order could be challenged within 90 days instead of period of 45 days which is prescribed. After getting the copy, the Counsel for the appellants had advised the appellants to file appeal thus the same was filed on 12.11.2012 thus causing a delay of 87 days.

The respondent has filed reply stating that complete particulars of the delay has not been pleaded anywhere in the application. It is also stated that the reasons for delay are not mentioned properly and each day's delay has not been explained. The respondent accordingly has seriously opposed the prayer for condoning the delay.

I have considered the submission made before me. The reasons in the application either to mention the period of delay or to explain the delay are totally absent. Once it is mentioned in the application that the Tribunal had observed that it will pronounce the order on the day it had heard the arguments, no reason would justify the delay in making an application for getting certified copy of the order. The reasons given in this regard that the Counsel for the appellants proceeded on summer vacations and resumed his duties only in the middle of July 2012 is as vague as one possibly can be. It is not even mentioned on which date the order was pronounced. If the Advocate had proceeded on summer vacations, the application for getting certified copy could have easily been made by anyone from his office. When the copy was applied is again not mentioned. It appears that certified copy was applied on 1.8.2012 and was made available on 16.8.2012 The confusion of the appellants about the time-limit for filing the appeal appears to have been introduced to get over the delay and cannot be taken as a valid ground once the appellants had engaged a Counsel and was constantly in his touch. The respondent bank is justified in pleading that the reasons given to explain the delay are utterly vague and delay has not been explained as is required in accordance with law. It is well-known that each day's delay is to be explained whereas the appellants have jumped from one date to another giving no reason in support. I am thus of the considered view that the delay has remained unexplained. No cause is given to file this appeal with delay of 87 days and the appeal is liable to be dismissed on the ground of delay alone.

Since the appellants have sought condonation of delay on the ground of merits raised in the memo of appeal, the merits have also been considered by me. The only plea raised on merit by the appellants is that their counter-claim has been wrongly rejected. Their plea is that the bank had illegally transferred an amount of Rs. 3.95 lacs on different dates from the account of the defendants without their permission. They accordingly would plead that this amount and the interest thereon had wrongly been claimed in the O.A. Apart from this, no submissions on merit are addressed.

To satisfy myself, I had required the Counsel for the bank to show the letter whereby the appellants had allegedly acknowledged their liability of Rs. 18,92,889.36 on 15.11.2003, which was inclusive of this amount of Rs. 3.95 lacs pleaded in the counter-claim. Counsel for the bank has placed before me a communication dated 18.11.2003 addressed to the appellant M/s. Mohan Sales (India) where the bank had informed the appellants that as on 18.11.2003, the debt was Rs. 18,92,889.36. This obviously was inclusive of the amount, which is disputed. Since the appellants had not raised any objection and had acknowledge this debt as due as on 18.11.2003, they cannot now be heard to complain in this regard in any manner they have done. On this count, I otherwise also do not find any merit in the appeal. The appeal is dismissed on the ground of delay as well as on merit. Since the appeal is primarily being dismissed on the ground of delay and has not been registered, no order needs to be passed on the application seeking waiver of the pre-deposited. That application is disposed of as having been rendered infructuous.