Mrugendrasingh Ajitsinh Ghatge vs SICOM Limited and Others

Revati Mohite Dere, J.—All these Civil Applications seeking condonation of delay of 3 years and 111 days in filing the aforesaid First Appeals can be disposed of by a common order, as they arise out of the same facts.

In the First Appeals, the Applicant has impugned the Judgment and Orders dated 21st October, 2011 passed by the learned District Judge -4, Kolhapur, in separate Miscellaneous Civil Applications. The said applications were preferred by the respondent no.1 -SICOM Limited, under Section 31(1)(aa) r/w Section 32(1) of the State Financial Corporation Act, 1951, for enforcement of the guarantors liability. The learned Judge held that the respondent no.1 was entitled to enforce the guarantee deed dated 31st March, 1992 and 16th June, 1992 signed by the applicant and consequently permitted the respondent no.1 -Company to enforce the liability as against the applicant. There is a delay of 3 years and 111 days in filing the said First Appeals and for which the applicant has filed the aforesaid Civil Applications seeking condonation of delay.

The learned counsel appearing for the applicant has sought condonation of delay in filing the aforesaid First Appeals, essentially on two grounds (i) that the applicant was suffering from "Chronic Obstructive Lung Disease and Hypertension" and was under continuous medical supervision. He relied on the medical certificate issued by Dr.Satish Kulkarni and medical records in support of the same and (ii) that the Advocate appearing on behalf of the applicant in the trial Court had withdrawn his appearance in the said proceedings for want of instructions and as such the applicant was unaware of the proceedings. He relied on the withdrawal pursis filed by the Advocate for the applicant in the trial Court. According to the learned counsel, the applicant had received the insolvency notice in February, 2014 after which he approached his Advocate and obtained copies of the impugned orders.

The delay condonation applications were opposed by the learned counsel appearing for the respondent no.1. The respondent no.1 has filed a detailed affidavit of one Bharat D. Dhongade, the authorised representative of the respondent no.1 -company, refuting the grounds raised by the applicant. It was contended that the applicant had suppressed material facts and that no reasons were set out for condoning the gross and inordinate delay of 3 years and 111 days. He contended that the respondent no.1 had filed the Miscellaneous Applications under Section 31(1)(aa) of the State Financial Corporation Act, 1951, in the District Court at Kolhapur in the year 2001. He submitted that the applicant was duly served, pursuant to which the applicant put in his appearance in the said proceedings through his advocate. He thus contended that the Applicant and his Advocate were well aware of the proceedings right from the beginning, however they were negligent and reckless in not proceeding with the said case. He submitted that the medical certificates do not in any way indicate, that the applicant was hospitalized or was indisposed, resulting in his inability to proceed with the matter and contest the case on merits. He, therefore, submitted that considering the inordinate and unjustifiable delay in filing the appeal, the delay ought not to be condoned.

Perused the delay condonation applications and the grounds set out herein; the documents relied upon by the Advocate i.e. medical certificate; the no instruction pursis filed by the advocate for the applicant and the affidavit in reply filed by the respondent no.1. In order to deal with the first ground raised by the learned counsel for the applicant, that the applicant was under continuous medical treatment for "Chronic Obstructive Lung Disease and Hypertension", we have perused the medical certificates. The said certificate has been issued by Dr.Satish Kulkarni of Shatayushi Clinic, Kolhapur. The said medical certificate dated 27th March, 2014, certifies that the applicant was suffering from "Chronic Obstructive Lung Disease and Hypertension" and that the applicant was under his treatment for the same, during the period from January, 2012 to 24th December, 2013. The medical case papers annexed to the said certificate, regarding the treatment given to the applicant during the said period, do not in any way reflect that the applicant's condition was so critical/serious, that he could not pursue his day to day activities or that he was hospitalized during the said period. From the perusal of the medical certificate/case papers, it is evident that the condition of the applicant was not such, that he was required to be hospitalised. With regard to the second ground, it is pertinent to note that the applications were filed by the respondent no.2 -company in the year 2001 and the impugned orders were passed in the year 2011. Infact, the pursis dated 2nd July, 2011, filed by the applicant's advocate records that despite the advocate informing the applicant several times, the applicant had not informed him to proceed with the said applications and hence was filing the ''no instructions'' pursis on 2nd July, 2011. The said pursis was filed in July, 2011, much prior to the period of illness mentioned in the medical certificate. Even assuming, that one were to accept the delay from 1st January, 2012 to 24th December, 2013, there is absolutely no explanation forthcoming, as to what transpired prior to January 2012 and after December, 2013. The present civil applications are filed some time in April 2014. The reasons set out in the applications, do not disclose "sufficient cause" for condoning the gross and inordinate delay of 3 years and 111 days. The applicant was well aware of the proceedings which were pending before the District Court for 10 years, however, was negligent in pursuing the same. Infact the applicant's Advocate was required to file a ''no instructions'' pursis, as is evident from the record. Thus, the conduct of the applicant in not pursuing the case diligently has led to the impugned orders being passed. Even otherwise, no cogent reasons have been set out, accounting for the gross and inordinate delay of 3 years and 111 days.

Considering the aforesaid, no case is made out for condoning the delay. Hence, the Applications are rejected. In view of the rejection of the Applications, First Appeals do not survive. Applicants are entitled to refund of Court Fees in accordance with the Rules.