Municipal Corporation vs M/s. Highway Service Station

Paramjeet Singh, J.—Instant regular second appeal has been preferred by the appellant/defendant against the judgment and decree dated 23.02.2011 passed by the learned Civil Judge (Senior Division), Ludhiana whereby suit filed by the respondent/plaintiff for recovery has been partly decreed, as well as, against the judgment and decree dated 01.12.2011 passed by learned Additional District Judge, Ludhiana whereby appeal preferred by the respondent/plaintiff has been allowed and appellant/defendant has been directed to make the payment of decretal amount along with interest to the respondent/plaintiff after furnishing indemnity bonds by the respondent/plaintiff. Along with this second appeal, a Civil Misc. application viz. CM No. 14058-C of 2012 for condonation of 248 days'' delay in filing the appeal has also been filed.

For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first Instance.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for recovery of Rs. 27,18,850-50 ps which includes principal amount of Rs. 20,21,450-19 PS and interest @ 18% per annum amounting to Rs. 6,97,300-31 PS. It was pleaded that defendant had got filled diesel in the vehicles belonging to its different zones at the petrol pump of the plaintiff. The defendant deputed one of its employee as attendant to fill diesel in the vehicles and he was provided a stock register and all the entries were made by him in the stock register. It was further pleaded that one bill was being raised for all the vehicles for a particular day. The bill was sent by the attendant to the defendant and the quantity of the diesel for the whole day, rate of diesel and total amount was mentioned in the bill. The defendant was having current running and mutual account with the plaintiff. Whenever the amount was paid to the plaintiff regarding purchase of diesel, the same was credited in the account of the defendant maintained by the plaintiff in the ordinary course of business. The suit amount was found payable after adjusting all the payments made by the defendant. The details of the due amount including the date and bill number from 1.2.2004 to 21.02.2004 is mentioned in the plaint. The defendant paid Rs. 1,21,854-93 PS which was adjusted against the previous balance. Now, sum of Rs. 20,21,450.19 ps is due from the defendant. Notice u/s 396 of Punjab Municipal Corporation Act, (for short "PMC Act") was sent to the defendant on 17.11.2005, but inspite of that, payment has not been made.

Upon notice, defendant appeared and filed written statement. It has been alleged that no notice u/s 396 of PMC Act was served by the plaintiff. It is admitted that the vehicles of the defendant used to get filled diesel against proper entries and proper measurements. It has been further alleged that Krishan Lal, an employee of the Municipal Corporation was posted as an attendant. The plaintiff in connivance with Krishan Lal committed the offence of mis-appropriation and cheating. The plaintiff did not supply the diesel/petrol to the vehicles of the defendant but entries in the record of Municipal Corporation were made without supplying diesel and petrol. It has been further alleged that forged and fabricated bills were prepared by the plaintiff. When this fact became known, FIR No. 9 dated 21.02.2004 was registered by the Vigilance Bureau, Ludhiana against the plaintiff and Krishan Lal. The defendant is not in position to release the amount as claimed in the present suit due to pendency of case.

On the basis of the pleadings of the parties, the Court of first instance framed the following issues:-

Whether the plaintiff is entitled to the recovery of Rs. 27,18,850.50 PS along with interest as prayed for? OPP

Whether the suit is bad for want of notice u/s. 396 of PMC Act? OPD

Whether the suit is time barred? OPD

Whether the plaintiff has not approached the Court with clean hands? OPD

Whether the suit has not been filed by proper or competent person? OPD

Whether the suit is bad for misjoinder of parties? OPD

Relief.

The Court of first instance, after perusal of the evidence led by the parties, recorded issue-wise findings and partly decreed the suit vide judgment and decree dated 23.02.2011. Against that, plaintiff preferred an appeal, which has been allowed vide judgment and decree dated 01.12.2011 by the lower appellate Court. Hence, this second appeal.

I have heard learned counsel for the parties and perused the record.

At this stage, learned counsel for the respondent submitted that since there is inordinate delay, therefore, before hearing the matter on merit, application for condonation of delay may be heard and decided.

In this case, notice was issued only regarding condonation of delay in filing the instant appeal vide order dated 23.01.2013 which reads as under:-

Notice re: condonation of delay for 11.7.2013.

Application for condonation of delay has been filed on the ground that the original file was misplaced in the office of the appellant-Corporation. The said file was traced on 15.11.2012 and after obtaining the necessary approval from the higher authorities, present appeal has been filed. For these reasons, delay of 248 days in filing the instant appeal has occurred.

Respondent has filed reply to the application for condonation of delay. It is mentioned in the reply that the present application has been filed on false and vague pleas and each day''s delay is not explained.

I have considered the contentions of learned counsel for the parties on the application for condonation of delay.

The issue of unreasonable or inordinate delay has received attention in several cases in courts of law. There are no hard and fast rules as to the manner in which the discretion to condone delay in filing an appeal is to be exercised. Often, period of delay and reason thereof, the prejudice, if any, caused to the respondent and merit of the case are taken into account. A close and careful examination of all these circumstances will determine whether delay should be condoned or not. There may be instances in which delay is relatively slight but serious prejudice is caused to the respondent and in other cases delay may be inordinate but prejudice is slight. Basically, the Court while condoning delay takes into account sufficient cause and reasons for delay. In view of this, it would be highly undesirable and indeed impossible to attempt to lay down a specific period i.e. so many years, more on the one side, lessor period on the other side. What is or is not inordinate or unreasonable delay depends upon the facts of each particular case. These vary from case to case, if delay is inordinate credible excuse is necessary to explain it otherwise natural inference would be that it is an inexcusable. These factors have been considered in numerous cases by various Courts of law. In terms of above, if a party which institutes a suit and then fails to avail all the remedies of appeal diligently may lose the right to appeal and being heard on merit unless sufficient grounds for condoning the delay are furnished. While assessing the delay objectively, it is to be seen from the point of view that due to delay the party has lost interest in pursuing the matter.

In the present case, following factors are required to be considered for condonation of delay:-

a) Is the delay in filing of the appeal is highly excessive and is there any reasonable explanation for the delay?

b) Are there prospects of success in the main appeal?

c) Will the respondents suffer, if delay is condoned?

So far as factor (a) in the present case is concerned, the delay of 248 days is apparently excessive. In my view, the explanation furnished for condonation of excessive delay is not believable and no cogent reasons and sufficient grounds have been given for condoning excessive delay of 248 days. The inference is irresistible that the applicants-appellants had decided for unexplained reasons not to file appeal within limitation.

So far as factor (b) with regard to the success of the main appeal is concerned, plaintiff filed a suit for recovery. The Court of first instance, after appreciation of the evidence, recorded a finding that liability to pay the amount of Rs. 20,21,450-19 PS is established. Further recorded a finding that defendant failed to prove that false entries were made in the stock register by Krishan Lal in connivance with plaintiff. The said findings have been affirmed by the lower appellate Court. As such, there is no merit even in the main appeal.

So far as factor (c) is concerned, the opposite party will suffer, if inordinate delay is condoned. The opposite party always expects that matter is brought to finality and it cannot be kept waiting for indefinite time to see that appeal can be filed at any time. Once statutory period of limitation expires, delay becomes sufficiently protracted, it becomes a sufficient and just ground to dismiss application for condonation of delay. Inordinate and unreasonable delay in filing the appeal constitutes an abuse of process of Court and warrants dismissal of the application. It is also the duty of the applicant-appellant to ensure that appeal should be filed within time frame in accordance with the provisions of law so that the matter may attain finality.

In view of the facts and circumstances narrated above, I am of the considered opinion that applicants-appellants has failed to make out a case justifying condonation of inordinate delay of 248 days in filing second appeal.

No other point has been argued.

In the premises the applicant-appellant''s application for condonation of delay fails and is hereby dismissed. Resultantly, instant second appeal is also dismissed as barred by limitation.

No order as to costs.