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Judgment
S. Ravi Kumar, Chairperson
This Application is filed to condone delay of 2027 days in preferring the Appeal against Order dated 27.11.2015 in IA 4850/2015 in OA 525/2002, now TA 1534/2017 of DRT-II, Bangalore.
Brief facts leading to this Application are as follows:-
Respondents 1 and 2 herein filed OA for recovery of money, and in that OA, Petitioners/Appellants herein filed IA 4850/2015 to summon Report of Shri Venkatachenalu, Assistant Manager of SBI, which is an internal correspondence between KSFC and SBI, to support Counter Claim made in the OA.
Said Application is resisted by Bank.
On a consideration of contentions and rival contentions of both parties, Tribunal below dismissed said Application; aggrieved by which, Petitioners/Appellants herein filed Writ Petition No.3572/2016 before Hon’ble High Court of Karnataka, and after disposal of the Writ, present Appeal is filed.
Second Petitioner and Managing Director of first Petitioner/Appellant Company, filed Affidavit in support of Petition, and said Affidavit runs into 19 paras, but, most of the paras are regarding contentions and rival contentions of parties in OA and disputes in the main case. The relevant para for the purpose of condonation of delay is, at para 14, in which, Petitioners/Appellants stated that IA 4850/2015 is dismissed on 27.11.2015, challenging said Order, first Petitioner/Appellant filed Writ Petition No. 3572/2016, which is disposed of on 18.12.2020, with liberty to approach appropriate forum by recording that the time spent in conducting Writ shall be taken into consideration for the purpose of condonation of delay. Other para relevant for the delay is para 17. Petitioners/Appellants contended that the Appeal has to be filed within 30 days from the date of receipt of Order of certified copy of IA, but, copy was ready and handed over to Petitioners/Appellants on 02.12.2015. However, Writ Petition was pending, and Appeal is filed after disposal of Writ, while calculating delay in filing the Appeal, after deducting the time spent before Hon’ble High Court, it comes to 2027 days, therefore, the same has to be condoned.
Second Respondent filed Counter disputing the Affidavit averments, contending that the present Petition is an abuse of process of law and Petitioners/Appellants are doing forum shopping. It is contended that Petitioners/Appellants knowing well that Writ is not maintainable, approached Hon’ble High Court, and was successful in dragging on for more than 20 years. It is further contended that the period of delay claimed is approximately 5.5 years, and present Appeal is only to drag the OA, which is pending from the year 2002. It is further contended, if delay is condoned, serious prejudice will be caused to Respondents and also to whole society, therefore, the same has to be dismissed.
Heard both sides.
Advocate for Petitioners/Appellants submitted that Order copy in IA is received on 02.12.2015 and Writ is filed on 23.01.2016, and after disposal of the Writ on 18.12.2020, Appeal is filed on 08.08.2021, and the same was due to COVID-19. It is submitted, this Application is filed under Section 5 of Limitation Act, therefore, considering the reasons mentioned in the Affidavit, delay may be condoned and an opportunity may be given to Petitioners/Appellants.
On the other hand, Advocate for Bank submitted that even in approaching Hon’ble High Court, there is delay of six days, and that delay is nowhere explained. It is further submitted that the period spent before Hon’ble High Court would fall under Section 14 of Limitation Act, and unless the conditions indicated in the said Section are fulfilled, that period cannot be excluded, but, Petitioners/Appellants, without fulfilling those conditions, excluded that period. It is submitted, present Application is nothing but an abuse of process of law, therefore, liable to be dismissed.
It is not in dispute that Petitioners/Appellants filed Writ Petition No.3572/2016, challenging the very same Order, and Hon’ble High Court dismissed said Writ Petition giving liberty to Petitioners/Appellants to approach this Appellate Tribunal by observing that the period spent in Hon’ble High Court may be considered while condoning delay, which means, Petitioners/Appellants are expected to fulfill the conditions of Section 14 of Limitation Act, to consider the period spent in Hon’ble High Court. It is also not in dispute that, even there is delay of six days by the time the Writ is filed, and that six days, is nowhere explained for the reasons best known to Petitioners/Appellants.
Now, it may be appropriate to read Section 14 of Limitation Act, before considering the request of Petitioners/Appellants. Section 14 of Limitation Act, is as follows:-
“14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”
From a reading of above Section, it is clear that the period spent in a wrong forum has to be excluded, provided, the party has been prosecuting said proceedings in the wrong forum with due diligence and prosecuted in good faith from defect of jurisdiction and other cause. As rightly pointed out by Advocate for Bank, it is for Petitioners/Appellants to show that they were prosecuting the Writ before Hon’ble High Court, in good faith and with diligence. Nowhere in the entire Affidavit, it is stated that they approached Hon’ble High Court under a wrong impression, and that said Writ Petition was prosecuted in good faith. As seen from Order of Writ Petition, it appears that Petitioners/Appellants justified their action in approaching Hon’ble High Court, when an objection is raised as to the maintainability without exhausting remedy under RDB Act, 1993, and Hon’ble High Court, did not accept the contention of Petitioners/Appellants, and recorded a specific finding on that aspect. However, while concluding the Writ, opportunity was given to Petitioners/Appellants to approach this Tribunal by further observing that time spent before Hon’ble High Court may be considered for condonation of delay. When such is the case, it is the bounden duty of Petitioners/Appellants to show how they prosecuted the Writ before Hon’ble High Court in good faith and how they are diligently prosecuted the Writ. Absolutely there is no answer in the Affidavit filed in support of Petition. Further, when there is six days delay even in approaching Hon’ble High Court, it is expected from Petitioners/Appellants to explain that period also. But, as already observed, Petitioners/Appellants are completely silent for that period. Therefore, first limb for the delay is for approaching Hon’ble High Court and spending time there, and if that is properly explained, then second limb comes, namely COVID-19 period. That means, only if first limb is satisfactorily explained, consideration of second limb would arise. But, here as already observed above, Petitioners/Appellants completely failed in fulfilling the conditions of Section 14 of Limitation Act, for excluding the period that spent before Hon’ble High Court, which falls under first limb. As rightly pointed out by Advocate for Respondent No.2 Bank, OA is filed in the year 2002, and Petitioners/Appellants’ intention is that they want to drag the matter, has to be accepted, and in fact, there is no due diligence in prosecuting the case.
In view of my above observations, I am of the considered view that Petitioners/Appellants miserably failed in explaining inordinate delay of 2027 days in filing the Appeal, and the Application is liable to be dismissed.
In the result, the Application IA 531/2021 is dismissed with costs. Consequently, Appeal A.IR:143/2021 is rejected. All pending IAs, if any, stand closed.