State Bank of India vs Anjali Vaidya & Anr

Ashok Menon, Chairperson

I.A. No. 398/2013 Filed under Section 5 of the Limitation Act to condone 222 days of delay in filing M.A. No. 397/2013 an application for the restoration of two similar applications dismissed earlier. M.A. No. 214/2011 is an application for restoration of Appeal No. 165/ 2007 on the files of this Tribunal which was dismissed a 2nd time for similar default non-appearance of the Appellant on 24/01/2011. There was again a delay in filing M.A. No. 214/2011 for restoration and hence, M.A. No. 215/2011 was filed for condoning the delay in filing it. The two applications namely M.A. Nos. 214 and 215/2011 came for consideration before this Tribunal on 02/08/2012. The Appellant was again absent repeatedly, as a consequence of which, both the applications were dismissed for default and the appeal was not restored. The Appellant has filed the present two applications to get M.A. Nos. 214 and 215/2011 for restoration and condonation of delay restored to file to ultimately get the Appeal No. 165/2007 restored to file.

It is essential to examine the chequered history of this Appeal No. 165/2007 to decide whether there is “sufficient cause” for condoning the delay of 222 days in filing the application for restoration. The Appellant was not regular in appearance before the Tribunal. The appeal was dismissed for non-appearance of the Appellant on 15/02/2008. M.A. No. 169/2008 was filed for restoration of the dismissed appeal. On 26/06/2008, Appeal No. 165/2007 was restored to file. After that, the Appellant again defaulted in appearance and it resulted in the dismissal of the appeal a second time on 24/01/2011. The Appellant filed M.A. No. 214 of 2011 for restoration of the appeal and since there was a delay in filing the restoration application, M.A. No. 215/2011 was filed for condoning the delay. The Appellant again remains absent as a result of which M.A. Nos. 214 and 215/2011 got dismissed on 02/08/2012. In M.A.No.397/2013 the Appellant seeks to restore the above-mentioned applications to the file of this Tribunal.

There is a delay of 222 days in filing the application for restoration. The reasons for the delay are explained thus:

“7. Applicant bank is situated at Nagpur and the said branch depended solely upon the earlier advocate to safeguard the interests of the Applicant bank. It is submitted that the Applicant came to know about the dismissal of the said appeal and even the said restoration application recently in March 2013.

It is submitted that due to the non-attendance of the earlier Lawyer the requisite appeal came to be dismissed. It is submitted that the Applicant bank being situated at Nagpur depended upon the said Lawyer of Nagpur to deal with the matter who has failed in his duty.”(sic)

It is further submitted that the appeal could not be filed in time due to a delay in getting administrative sanction from the Higher Authorities and thereafter, the applications were filed.

The 1st Respondent appeared and filed a reply to this application for condonation of delay stating that there is no “sufficient cause” to condone the delay of 222 days in filing the restoration application.

Heard the rival contentions of the counsel appearing for the parties and records perused.

There is a delay of 222 days in filing the application for restoration of the earlier restoration and condonation applications. The reason for the delay is that the counsel engaged by the Applicant defaulted on appearing on several dates. It is not explained whether the Applicant was vigilant enough to enquire about the status of their appeal from their lawyer.

This is not the first time that the appeal was dismissed for default of nonappearance of the Appellant or his counsel. It was dismissed twice and the third time, the applications for restoration and condonation of delay got dismissed for default. A litigant has a duty to be vigilant of his rights and cannot escape by putting the blame entirely on the lawyer appearing for him sitting complacently for 222 days without inquiring as to what happened to his application to restore the dismissed Appeal. Delay defeats equity. The court helps only those who are vigilant and ‘do not slumber over their rights’, as says the Latin maxim Vigilantibus Non-Dormientibus Jura Subveniunt.

The Appellant is a bank, a public sector institution comparable to a State's function. In the absence of plausible or acceptable reasons for condoning the delay, the Applicant cannot seek condonation of delay merely for the reason that the Applicant is a public sector bank dealing with public money and that sanctions will have to be obtained from higher authorities to file an application for restoration, and condonation of delay. There are no acceptable explanations forthcoming regarding 222 days delay in filing the application for restoration. The antecedents of this case indicate that the Applicant was negligent throughout. No special treatment can be given to the Applicant because it is a public sector bank. The law of Limitation applies to all litigants with equal force.

Hence I find that there are no sufficient reasons for condoning the delay of 222 days in filing I.A. No. 397/2013 for restoration, and hence, I.A.398/2013 for condonation of delays stands dismissed.