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Judgment
I.A. 563 of 2024 is filed u/s 5 Limitation Act for condonation of delay of 210 days in preferring the appeal against the order dated 09.04.2024 passed by the learned DRT-I Kolkata in M.A. 72 of 2016 (Jvine Development Pvt. Ltd. Vs. Punjab National Bank) whereby learned DRT allowed the M.A. with the direction to the Asset Sale Committee and creditor bank to refund Rs.2,32,50,000/- with interest 12% per annum.
Appeal was filed on 04.11.2024 along with application I.A. 563 of 2024 for condonation of delay and thereafter two supplementary affidavits are filed by the appellant bank on 15.05.2025 and 08.09.2025. Opposition to the same are also filed by the respondent.
In I.A. 563 of 2024 initial ground taken by the appellant is that after going through the impugned order, appellant discussed the matter with the competent authority and decided to prefer an appeal. Thereafter, appellant bank discussed the matter with the lawyer and it was found that all the documents were neither available with the learned advocate nor with the appellant bank. Certified copy of all the documents and order were applied on 11.07.2024 and the same was received on 23.07.2024. On 01.08.2024 all the certified copies were handed over to the learned advocate, who took time to prefer the appeal.
In the first supplementary affidavit filed by the appellant on 15.05.2025 it is stated that appellant applied for certified copy on 11.07.2024. After depositing charges for certified copy, the same was ready on 22.07.2024 and was delivered on 23.07.2024. Matter was discussed after receipt of the documents with the competent authority on 08.08.2024 and the authority took time to gather information from Branch office on 12.08.2024 and 17.08.2024. Thereafter, competent authority decided to seek permission from the Head Office to challenge the impugned order and after discussion, Head Office allowed permission to file appeal on 19.09.2024 and appeal was filed on 04.11.2024.
In the second supplementary affidavit filed by the appellant it is stated that the impugned order does not reflect that the judgement was delivered in open court. There is no recording that the order was passed in presence of both the parties. Hence, appellant was unaware that the order was delivered. It is further stated that appellant came to know from the letter written by the respondent and thereafter started searching the documents from the records of the bank. Records were not available in the Bank Branch since records were old. On 15.06.2024 appellant found certain records which required to be brought on record. Appellant applied certified copy on 11.07.2024 and the same was received on 23.07.2024. After obtaining the documents, the same was handed over to learned advocate on 01.08.2024. Thereafter, learned advocate advised to file the appeal and appeal was moved on 04.11.2024.
Opposition to the I.A. and two supplementary affidavits was filed by the respondents challenging the ground taken by the appellant. It is stated in reply to the supplementary affidavits that the order was passed in open court after hearing the learned counsel for parties at length. The order was passed on the date fixed as per the cause list. It is further stated that there is no explanation for delay in moving the application for condonation of delay. No sufficient cause is shown. Delay in filing the appeal is not duly explained. The application is liable to be dismissed.
Heard the learned counsel for the parties and perused the records.
Admittedly, the impugned order was passed on 09.04.2024 and the appeal was filed on 04.11.2024. It is also not in dispute that application for certified copy was moved on 11.07.2024 and copy was prepared on 22.07.2024 and delivered on 23.07.2024. Now the issue to be considered as to whether the appellant explained the delay in filing the appeal and sufficient cause is shown by the appellant?
Law is well settled by the Hon'ble Supreme Court in Shivamma (dead) by Lrs. Vs. Karnataka Housing Board & Ors. [2025 SCC OnLine SC 9169] wherein it has been held that appellant is not only required to explain the delay after expiry of the statutory period of delay rather he is required to explain the delay from the date when limitation is running, meaning thereby appellant has to explain the delay right from day one when the impugned order is passed.
In Shivamma (supra) Hon'ble Apex Court has held as under:
"40.As such, under Section 5 of the Limitation Act, for the purpose of seeking condonation of delay in filing of an appeal or application, as the case may be, beyond the stipulated period of limitation, the delay in the filing has to be explained by demonstrating the existence of a "sufficient cause" that resulted in such delay for both the prescribed period of limitation as-well as the period after the expiry of limitation, up to actual date of filing of such appeal or application, as the case may be, or to put it simply, explanation has to be given for the entire duration from the date when the clock of limitation began to tick up until the date of actual filing, for seeking condonation of delay by recourse to Section 5 of the Limitation Act.
115.However, as is manifest from the entire discussion above, for the purpose of condonation of delay in terms of Section 5 of the Limitation Act, the delay has to be explained by establishing the existence of "sufficient cause" for the entirety of the period from when the limitation began till the actual date of filing. In other words, if the period of limitation is 90-days, and the appeal is filed belatedly on the 100th day, then explanation has to be given for the entire 100-days."
Now we have to look into the matter whether sufficient cause for the delay in preferring the appeal is fully proved or whether appellant could make out grounds for sufficient cause for condonation of delay?
Bare perusal of record will show that impugned order was passed on 09.04.2024 after hearing the learned counsel for the parties which find support from the impugned order itself. It is also stated in the opposition that order was passed in open court as per the cause list. No rejoinder to the same is filed. Hence, it could not be accepted that the order was not delivered in open court on 09.04.2024 by the learned DRT.
A letter dated 02.05.2024 was written by the respondent to the appellant bank for making payment. It was stated that learned DRT passed the order on 09.04.2024 and copy of the order was also annexed with the letter. There is no denial of the fact that this letter was not received by the bank rather 'Receipt' endorsement in the letter was made. Hence, it was within the knowledge of the bank that impugned order was passed by the learned DRT on 09.04.2024. But no steps were taken for obtaining the certified copy for filing the appeal rather the application for certified copy was moved on 11.07.2024. It was stated that in the I.A. 563 of 2024 in para 4 that after going through the order, appellant discussed the matter with the competent authority and decided to prefer the appeal. After discussing the matter with the lawyer and it was found that certain documents were not available. It means that appellant bank had full knowledge of the impugned order right from the date of passing the impugned order. Due to the reason best known to the appellant or officers of the bank no steps were taken for filing the appeal. Appellant submitted that period from 31.07.2024 to 17.08.2024 were spent for obtaining permission from the competent authority. Obtaining permission from superior authority could not be a sufficient ground for condonation of delay. Appeal was filed with the documents after obtaining certified copy wherein ground taken that record was available in Allahabad Branch and appeal is being prepared in Kolkata. Hence, record could not be obtained due to the distance. But it could not be a ground for condonation of delay as the bank is same and all officers of the bank either posted in Allahabad or Kolkata working in the same bank. Appellant could not take advantage of this ground.
Another ground is taken that documents were handed over to the learned counsel who took time to prepare the appeal. The same is also not a valid ground as it is stated in the first supplementary affidavit that the matte was referred to the competent authority on 08.08.2024 and the permission of the Head Office was obtained on 19.09.2024 and the same was handed over to the learned counsel on 24.09.2024. Thereafter, due to Puja Vacation learned counsel could not prepare the appeal since he was not available. The instant appeal, which was not filed within the period of limitation, wherein ground for spending time in Puja Vacation is not a valid ground. Hence, ground taken for consuming time due to Puja Vacation could not be a ground for condoning the delay in filing the appeal.
In the supplementary affidavits additional grounds have been taken by the appellant which are inconsistent with the ground in original affidavit filed by the appellant. Hence, all the subsequent grounds are afterthought. Appellant cannot take any advantage of the same.
Law is well settled by the Hon'ble Apex Court in Pathapati Subba Reddy (Died) -Vs- The Special Deputy Collector (LA)[(2024)12 SCC 336] that there is difference between the 'excuse' and 'sufficient cause'.
The Hon'ble Apex Court in Pathapati Subba Reddy (supra) has referred to Collector, Land Acquisition, Anantnag and Others -vs- Katiji & Others [(1987) 2 SCC 107] wherein it was held that :
"x x x x ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day's delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of 'sufficient cause' for not filing the appeal in time, is a condition precedent for exercising the discretionary power to condone the delay. The phrases liberal approach, justice-oriented approach and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act."
It is further held that it must be borne in mind, while construing 'sufficient cause' in deciding application under Section 5 of the Limitation Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of the decree-holder accrues and this right ought not to be lightly disturbed.
Sufficient cause is the crux of disposing of application filed u/s 5 Limitation Act wherein sufficient cause has to be shown and established by the appellant.
In the present case there is inordinate delay of 210 days which the appellant could not explain satisfactorily. No sufficient cause could be proved.
Accordingly, I do not find any ground to condone the delay in preferring the appeal. Application for condonation of delay is liable to be dismissed.
O R D E R
I.A. 563 of 2024 filed u/s 5 Limitation Act is dismissed. Consequently, Appeal Dy. No. 980 of 2024 is also dismissed as time barred. Pending I.A., if any, stands disposed of. Costs easy.
File be consigned to record room.
Copy of the judgement/Final Order be uploaded in the Tribunal's website.