Rajinder S. Rai Kawar vs Punjab National Bank And Ors.

S.N.H. Zaidi, J

The instant application (MA 807/2011) has been filed under Section 5 of the Limitation Act read with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, the RDDBFI Act) for condoning the delay of four days occasioned in filing the appeal. Both the respondents have filed separate replies to the application opposing the prayer.

I have heard Mr. Rajeev Narain representing Mr. Dhananjay Kumar Singh, Counsel for the appellant/applicant, Mr. Safder Imam representing. Mr. Hashmat Nabi, Counsel for 1st respondent Bank and Mr. R.M. Bagai, Counsel for respondent No. 2 and perused the record.

As per officer note, the appeal has been filed with a delay of 36 days beyond the period of limitation. The record shows that the impugned order was passed on 9.6.2011, certified copy whereof was applied by the applicant on 29.6.2011, which became ready on 16.8.2011, but the same was collected/received on 15.9.2011. The appeal has been filed on 17.10.2011, whereas, according to the appeal memo, it was verified on 7.10.2011.

Mr. Narain has submitted that due to illness the appellant was not in a position to sign the appeal memo, therefore, the appeal could not be filed within the period of limitation. He also submits that the Hon'ble Supreme Court in State of Nagaland v. Lipok AO & Ors., II : (2005) CCR 47 (SC) : III (2005) SLT 455 : : AIR 2005 SC 219 has observed that the expression "sufficient cause" under Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice.

The learned Counsel for the respondents, however, vehemently opposed contending that the prayer of the applicant is for the condonation of 4 days' delay only, which does not make out from the record as according to para 3 of the application itself, the period of limitation was computed after excluding the time consumed in obtaining the certified copy of the impugned order, which in any case does not appear to be less than 35 days. It has been pointed out that though, in para 2 of the application, the appellant Mr. Rajinder S. Rai Kawar has been shown as unable to sign the appeal memo due to illness, yet neither the nature nor the duration of his alleged ailment has been specified to see as to what ailment he was suffering with which made him unable even to sign the memo of appeal and when did he recover from his alleged illness. They have also pointed out that the appeal memo was verified by the appellant on 7.10.2011, but the appeal came to be filed only on 17.10.2011 and there is no explanation as to why the appeal could not be filed even after signing and verifying the appeal memo on 7.10.2011. The contention of the respondents in effect is that the appellant has shown no cause, what to say of sufficient cause, for the delay in filing the appeal.

Considering the submissions of the parties' Counsel, I am inclined to accept the contention of the respondents, because no reason/explanation has been put forward as to why the certified copy of the impugned order was not collected for about a month when it was ready for delivery on 16.8.2011 and was taken on 15.9.2011. Moreover, there is also nothing on record to see as to what was the nature of ailment of the appellant which prevented him either to collect the certified copy of the order from DRT for such a long period or to file the appeal immediately after obtaining the copy of the impugned order. The appellant has also not shown as to how long he remained ill due to which he could not sign the appeal memo and when did he recover from his illness. There is also nothing on record to show as to why the appeal was not filed when it was finally signed and verified on 7.10.2011. I am, therefore, convinced that the appellant had deliberately not taken necessary steps and was grossly negligent in pursuing his remedy of appeal in time. The delay on his part, thus, does not appear to be bona fide.

The proviso to Sub-section (3) of Section 20 of the RDDBFI Act empowers this Tribunal to entertain an appeal even after the expiry of the period of limitation of 45 days subject to its satisfaction that there was sufficient cause for not filing the appeal within that period. Hon'ble Delhi High Court in its order on C.M. No. 4215/2006 filed in R.S.A. No. 99/2006, Ranbir Singh v. Jaswant Singh & Ors., passed on 23.2.2010, has observed that the term "sufficient cause" appearing in Order 41 Rule 3, CPC is generally to be construed liberally so as to advance justice to the parties and delay in re-filing (under Chapter 1, Rule 5, Part A of the Rules relating to proceedings in the High Court of Delhi) is not subject to the rigours as applied in excluding the delay under Section 5 of the Limitation Act. The Hon'ble Supreme Court has also held, in State of Nagaland v. Lipok AO & Ors. (supra), that liberal construction to the expression "sufficient cause" be given to advance substantial justice, but the Hon'ble Court has also observed that generally the delay in preferring the appeals is required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay The appeal, in that case, was filed by the State of Nagaland against the acquittal. The Hon'ble Court considering the circumstances of that appeal, had condoned the delay with the observation that in litigations to which Government is a party, there is yet another aspect which cannot be ignored that if appeals brought by Government are lost for any default, no person is individually affected, but what suffers is the public interest and that the decisions of Governments are collective and institutional decisions do not share the characteristic of decisions of private individuals. Though the facts and circumstances of the said case are entirely different with the present matter, yet, even in the light of the observation of the Hon'ble Court, since the appellant/applicant was deliberately inactive and grossly negligent in filing the appeal within the period of limitation and has failed to show his bona fide, therefore, he does not appear to be entitled for grant of any indulgence by this Tribunal.

In view of above discussion, I find no merit in the application and the same is accordingly dismissed. Copy of this order be furnished to the parties as per law.