M/s Zaz Sons Export Pvt. Ltd. & Another vs Akhil Kumar Gupta

Sharad Kumar Sharma, J

Though hesitatingly this Court had to face a very peculiar situation, which has been projected the counsel for the parties with regards to the circumstances under which this Court has been called upon by the parties to the second appeal to deal with the propriety of the delay condonation application filed by the judgment debtor (appellant herein) seeking condonation of delay of 1302 days, which has chanced in filing the present second appeal.

The brief genesis of the entire controversy, which emanates is from a decree rendered in a Suit of plaintiff/respondent, wherein, he has sought the decree for recovery of an amount of Rs. 85,868.65, which is claimed to have fell due to be paid by the defendant/appellant in lieu of a business transaction entered into inter se between the plaintiff and the defendant. The learned Trial Court on considering the propriety of the claim raised in Suit No. 455 of 1995 'Shri Akhil Kumar vs. M/s Zaz Sons Exports Pvt. Ltd. & Another' held that the defendant/appellant would be liable to pay an amount claimed in Suitand the interest accruing thereon it in terms of the contract of the business transaction. Consequently, the Suit No. 455 of 1995 'Akhil vs. Zaz Sons Export' was decreed by the on 03.04.2001 by the Court of Additional Chief Judicial Magistrate II, (S.D.), Dehradun, after the contest was put in by the defendant/appellant.

The delay condonation application filed by the defendant/appellant in the present second appeal is also being opposed by the learned counsel for the plaintiff/respondent, from the view point that once the decree dated 03.04.2001, which has decided the lis on merits and when the First Appeal was preferred by the defendant (appellant herein) it was filed with the delay condonation application seeking condonation of delay of about four years 7 months, which has chanced in filing the appeal being Civil Appeal No. 745 of 2005 'M/s Zaz Sons Export Pvt. Ltd. & Another vs. Sri Akhil Kumar Gupta'.

The First Appeal since was accompanied with the delay condonation application the First Appellate Court by the impugned judgment dated 01.10.2014 as rendered by the Court of VI Additional District Judge, Dehradun, had rejected the delay condonation application filed with the Appeal for the reasons that the delay of 4 years and 7 months has not been satisfactorily explained. Consequently, declined to condone the delay in filing the First Appeal.

In view of the judicial pronouncement, which has been dealt with by the coordinate Bench of this Court as recorded in its judgment dated 16.11.2014, to the effect that as against the rejection of Section 5 application filed with a Regular First Appeal for decision on the delay condonation application, the appropriate remedy, which was available to the defendant/appellant would have been to file Second Appeal invoking Section 100 of the Code of Civil Procedure, instead of filing of a writ petition. But the fact remains and also established from the record that the defendant/appellant has filed a writ petition being Writ Petition No. 2563 of 2014 'M/s Zaz Sons Export Pvt. Ltd. & Another vs. Sri Akhil Kumar Gupta' in which the defendant/appellant was able to get an interim order in his favour initially.

The grievance, which has been addressed by the learned senior counsel for the plaintiff/respondent decree holder is that immediately after the institution of the writ petition on 16.11.2014 he has put in appearance and has filed his counter affidavit on 15.04.2015 in the writ petition and at the very inception of his objection by way of counter affidavit he has taken the very ground and the ground of limitation the writ petition would not be maintainable because it takes shape of a decree and if at all the defendant/appellant had any remedy under law he had a remedy by way of filing of a second appeal.

The said contention and objection, which was raised by the plaintiff/respondent, which is being argued while opposing the delay condonation application by the plaintiff/respondent is that as soon as the said objection was taken in the counter affidavit filed by him on 15.04.2015 in the Writ Petition No. 2563 of 2014 'M/s Zaz Sons Export Pvt. Ltd. & Another vs. Sri Akhil Kumar Gupta' with regards to maintainability to the writ petition, in all fairness it demanded that the defendant (appellant herein) ought to have got the writ petition dismissed as withdrawn forthwith and should have approached, the appropriate forum of second Appellate Court in challenging the judgment dated 01.10.2014 passed by the First Appellate Court in First Appeal No. 745 of 2005 'M/s Zaz Sons Export Pvt. Ltd. vs. Akhil Kumar Gupta', but rather he chose to enjoy the interim order kept the writ petition pending despite of the counter affidavit being filed by the plaintiff/respondent, till the writ petition was ultimately dismissed by the Coordinate Bench of this Court as not maintainable, by this Court on 26.02.2018.

What is important to be considered is that and also raised by way of an argument by the learned senior counsel for the plaintiff/respondent that despite of the fact that the writ petition was held as to be not maintainable by the order dated 26.02.2018, yet again the bonafides of the defendant/appellant is doubted, from the view point that as soon as the writ petition was dismissed as not maintainable on 26.02.2018, then atleast it was expected from the defendant/appellant that he should have filed a second appeal yet again atleast within 90 days at the most from the date of passing of the order dated 26.02.2018. But, that was not done. Rather the present Second Appeal was filed for the first time after the expiry of a period of limitation even if it determined from the order dated 26.02.2018 by filing the same before this Court on 23.07.2018, that is beyond the period of 90 days of limitation. Thus, the learned senior counsel contends that even if the Section 5 application filed in support of the second appeal is taken into consideration from the date of passing of the judgment in the writ petition on 26.02.2018, then too the delay does not deserve to be condoned, because being conscious of the order dated 26.02.2018 passed in his writ petition the defendant/appellant has voluntarily has chosen to file a second appeal after the period of limitation even if it is computed from the order dated 26.02.2018, but these are the facts, which is not disputed by any of the parties with regards to the chain of proceedings, which had flown on from the date of principal judgment of the Trial Court dated 03.04.2001 and which has ultimately culminated with the dismissal of the writ petition on 26.02.2018.

Consequently, the filing of the second appeal with the delay of 1302 days is being seriously opposed by the learned counsel for the plaintiff/respondent on the ground that the bonafides of the defendant/appellant was not clear and fair enough, because consecutively he is trying to take the benefit of limitation by filing a belated proceedings and thereby consequently depriving the plaintiff decree holder of the money decree, which has been rendered in his favour way back in 03.04.2001. Hence, he contends that in such an eventuality the delay should not be construed liberally, as it has been propounded by the ratio as laid down by the Hon'ble Apex Court in its precedents, because the Court is also supposed to consider the intention of the applicant, who consequently files the proceedings with the delay condonation application with an intention that the beneficiary of the judgment may be deprived to reap its fruits, but there is another view also, which has been consistently held by the Hon'ble Apex Court that an effort should be made by the courts to ensure that a lis between the parties is decided on merits of the matter rather than on technicalities of limitation. The technicalities of limitation has to be considered or ought not to have created an impediment in deciding the proceedings only when with the lapse of time when the proceedings are invoked before a superior forum a right has matured or accrued in favour of the beneficiary of the judgment and he is being deprived of that.

This is the case, which is at hand because as it has been already observed that being a decree holder of money decree, even till date after the lapse of about 18 years the plaintiff/respondent has not been able to enjoy the decree dated 03.04.2001 and reap its fruits, but simultaneously this Court cannot be oblivious of the fact that it should endeavour that a lis to be decided on merits so that the controversy may come to an end for all times to come rather than on limitation.

In that view of the matter and considering the reason, which has been assigned in the delay condonation application, that the defendant/appellant has chosen a wrong forum of filing of a writ petition, under the legal advises extended to him, he cannot be shouldered upon with the responsibility of invoking the wrong Forum and, thus, under the pretext of the benefit under Section 19 of the Limitation Act the defendant/appellant seeks the condonation of delay of 1309 days in filing the second appeal.

This Court is of the view that though not specifically inclined to accept the propriety of the proceedings at the behest of the defendant/appellant in its totality, but simultaneously looking to the interest of the parties that there has had to be an adjudication on merits of the matter, this Court is of the view that the delay of 1302, for the reasons given in the application 1302 days' delay deserves to be condoned subject to the payment of cost.

Accordingly, the delay of 1302 days is condoned subject to the payment of cost of Rs. 1 lakh to be paid to the plaintiff/respondent within a period of two weeks from today.

List this case in the week commencing 11.09.2019 for hearing on admission of second appeal.