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Judgment
Ranjit Singh, J
O.A. No. 114/2008 filed by the Bank against M/s. Sheba Wheels Private Limited and others was allowed by the Tribunal below on 29.1.2013 holding the Bank entitled to recover a sum of Rs. 18,81,67,183 along with simple interest @ 17.5% p.a. from 3.9.2008 onwards and cost. Similarly, O.A. No. 69/2008 filed by the Bank against Rathore Hotels and Tours (P) Ltd. and others was also allowed by the Tribunal below, on 29.1.2013 holding the Bank entitled to recover a sum of Rs. 12,85,04,345/- along with interest @ 16% p.a. from 14.7.2008 onwards.
Instead of filing appeals against these orders, the appellants filed applications under Section 152, C.P.C. for rectification, which were dismissed on 16.4.2013 by a common order. The present appeals are, therefore, directed against both the orders dated 29.1.2013 and 16.4.2013.
The present appeals are accompanied by applications seeking condonation of delay in filing the appeals. This Tribunal issued notices to respondents on these applications. In between, prayer was also made for staying the auction proceedings, which was declined. On 25.10.2013, applications were ordered to be listed on 1.1.2014 and the appellants were given liberty to make a request to the Recovery Officer to adjourn the matter. When the matter was adjourned on 5.5.2014 it was found that the copy of the application filed under Section 152, C.P.C. was not placed on record. Time was allowed for placing the same on record subject to payment of Rs. 2.000/- as cost. Cost was deposited and the case has been heard today.
Counsel for the appellants would plead that the impugned orders were passed on 29.1.2013. Finding that these orders suffered from jurisdictional error, applications under Section 152, C.P.C. were filed on 22.2.2013 for rectification of the orders. These applications were dismissed on 16.4.2013. On the same date, certified copy of the order was applied, which was made available on 30.5.2013. The present appeals were filed on 20.6.2013. From these facts, the Counsel for the appellants would contend that the appellants were bona fide in pursuing their remedy seeking rectification of the order and have filed the present appeals within the period of limitation if the time taken by them pursuing their remedy by way of application under Section 152, C.P.C. is excluded. As per the Counsel, this period ought to be excluded and hence the appeals filled are within limitation. As per the Counsel, if for any reason it is taken that there is delay in filing the appeals, then the same ought to be condoned on the ground that the appellants were pursuing their remedy in a bona fide manner.
This plea is strongly opposed by the Counsel for the respondent Bank, who would state that mere filing of application under Section 152, C.P.C. would not extend the period of limitation. As per the Counsel for the respondent, limitation has to be counted from the date of the order, i.e., 29.1.2013. Since these appeals were filed on 20.6.2013 these are much beyond the period of limitation. The Counsel would further contend that the reason given by the appellants to explain the delay are totally unjustified and so no case for condoning the delay is made out.
To substantiate her submission, Counsel for the respondent has relied upon some observations made in the case of Nathuji Dhakad & Anr. v. Sohanlal Agrawal, 2007 (3) MPHT 283. The question in this case before the Court was as to whether limitation start running from the date of judgment/decree dated 14.5.2004 or from the date of correction which was allowed on 28.7.2004 The submission was that the period was to be computed from 14.5.2004 and on the face of it the appeal was barred by limitation. Reliance in this regard was placed on the judgment of Kerala High Court in the case of Thanuvan Appukuttan v. P.N. Gopala Pillai & Anr., 1968 Lawsuit (Ker.) 86. It is held in this case that when a decree is amended under Section 151 or 152 of the C.P.C., time does not run from the date of amendment for filing the appeal. Under Article 156 of the Limitation Act 9 of (1908), or under Article 116 of the Limitation Act, 1963 the period of limitation for filing an appeal in the High Court commences from the date of the decree or order. It is further observed that Order 20 Rule 7 of the Code of Civil Procedure provides that the decree shall bear date, the day on which the judgment was pronounced. The date of the decree is therefore, the date of the judgment whatever may be the date on which the decree is signed by the Judge. Any amendment made in a decree must relate back to the date of the decree. There is no decree bearing the date on which it is amended. The amendment of a decree under Section 151 or 152, C.P.C. does not bring about any change in the date of the decree and the time for filing an appeal against the decree therefore runs from the date of decree and not from the date on which it is amended.
Counsel for the appellants has also placed before me a few judgments. She would first refer to the case of Improvement Trust, Ludhiana v. Ujagar Singh & Ors., IV (2010) SLT 797 : III (2010) CLT 67 (SC) : 2010 VII AD (SC) 261. The Court in this case held that while considering the application for condonation of delay, no strait-jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It would depend on facts and circumstances in which the party acted and behaved. It is further observed that justice can be done only when the matter is fought on merit.
Reference is then made to the case of Bharat Sanchar Nigam Ltd. v. Haryana Telecom Ltd., 2010 VII ADF (Delhi) 331. The Court in this case has dealt with the issue of exclusion of time of proceeding bona fide in Court without jurisdiction. Judgment dismissing the objections was assailed in this case. The facts were that arbitral Tribunal was duty-bound to ensure that Award is delivered directly to party concerned. If delivery of Award is not effected, then the Tribunal must dispatch it once again. Award was not delivered to a party as envisaged. It was held that the period of filing objection have not commenced. The ratio of law laid down in this case was thus given in the peculiar facts of this case.
No doubt, it has been held that if remedy of review is bona fide invoked in a bona fide manner for justifiable reason, then it can be said that a person had invoked jurisdiction of the Court and thus the period spent in pursuing the remedy in bona fide manner can be considered for considering the plea of condonation of delay. In order to appreciate whether the appellants had justifiable cause to move an application under Section 152, C.P.C. or not, applications were called for and examined by me. The applications under Section 152, C.P.C. were filed on the ground that the Tribunal which passed the orders did not have the jurisdiction. These applications filed on this ground would not fall within the scope of Section 152, C.P.C. Section 152, C.P.C. mandates for amendment of judgment. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission which may at any time be corrected by the Court either of its own motion or on the application of any of the parties. This was not a case of clerical or arithmetical error in the decree or judgment correction of which could be so sought. During the course of arguments, I also required the Counsel to show if plea of jurisdiction had been raised in the response filed to the O.A., but the Counsel could not show any such pleadings. No doubt, to the application filed under Section 152, C.P.C., the appellants had raised the plea of jurisdiction, but that was not a bona fide remedy that the appellants were seeking for which any extension of time can be granted or their plea could be considered as sufficient to explain the delay. Undoubtedly, the period of limitation has to start from 29.1.2013. More so, in this case, the Court has declined to amend the order in any manner and has rejected the application filed by the appellants though considered the plea of jurisdiction as well while rejecting the plea. But, in my view, such application under Section 152, C.P.C. could not have been maintained to raise plea of jurisdiction. The approach made by the appellant is not considered bona fide.
As submitted by the Counsel, limitation for an appeal runs from the date of the judgment and where the decree was modified on an application filed for review of the judgment, the judgment or decree is not superseded in the eye of law and if the operative portion of the decree is modified by the correction, the amendment taken with the terms of the original decree constitute the final adjudication. The time for filing appeal runs from the date when original judgment was pronounced and if it is filed beyond the time, it can be extended on an application filed under Section 5 of the Limitation Act. In this case, even the application under Section 152 has been rejected and there is no case made out for counting the limitation from the date when the order rejected the application was passed. Be that as it may, the fact remains that these appeals have been filed with delay of nearly six months and the explanation offered in this regard is not found justified. The delay has thus not been explained satisfactorily as the remedy which the appellants had invoked was not bona fide one. I am, therefore, not inclined to condone the delay and would dismiss these applications seeking condonation of delay.
Consequently, the appeals are also dismissed on account of delay.