State Bank Of Mysore vs Rashmi Syal

The Bank had filed O.A. No. 22/2006, which was disposed of on 10.2.2011 along with S.A. filed by one Mr. Neeraj Syal. The Tribunal below has allowed the O.A. of the Bank by awarding simple reducing balance based interest @ 10% to be calculated on Rs. 31 lacs from the date of claim till full realization. The demand of the Bank was that the interest be allowed from the date of NPA, which plea is declined by the Tribunal below. Aggrieved against this part, the Bank has filed the present appeal against the order passed in the O.A.

This appeal is filed with a delay of 99 days and thus is accompanied by an application seeking condonation of delay in filing the appeal. Notice was issued in this case on the application seeking condonation of delay on 20.12.2011. Thereafter, the case was adjourned for effecting service on some respondents and for filing reply. In between, some application for effecting service on respondents by way of substituted service was filed, which was allowed. The record of the Tribunal below has been summoned for considering the prayer made in the application seeking condonation of delay. The Counsel for the parties are heard on the application seeking condonation of delay.

The perusal of the application would show that a Cash Credit Facility of Rs. 15 lacs and a Bank Guarantee facility of Rs. 25 lacs were granted by the appellant Bank to Smt. Rashmi Syla, proprietress of M/s. Richies Fashion on 21.2.2003. To secure the aforesaid credit facilities. Mr. Virender Syal and Mr. K.8. Syal (since deceased) stood guarantors. Late Mr. K.B. Syal had mortgaged his immovable property bearing House No. 853. Sector 11-12, HUDA, Panipat (Haryana) in favour of the Bank. As the borrower failed to liquidate the outstanding liability against the aforesaid facilities, the Bank filed O.A. for the recovery of Rs. 45,05,929.92 against the borrower and the guarantors. Mr. Neeraj Syal filed S.A. challenging the action taken by the Bank under SARFAESI Act relating to immovable property, i.e. the house. Both O.A. and S.A. were clubbed together and ultimately Mr. Neeraj Syal and the respondents herein are directed to pay Rs. 30,88,000/-.

As per the Bank, there is no basis for directing the respondents to deposit this amount and the matter was accordingly referred to higher authorities of the appellant Bank for further course of action. It is averred that the appellant did not want to burden this Tribunal with extra work if the impugned order was considered not fit for filing the appeal. The appellant accordingly thought of examining various issues critically before approaching this Tribunal. The case was considered for further course of action and only thereafter the appellant Bank decided to file appeal and in the process a delay of 100 days has taken place in filing the appeal. Pleading that the delay in filing the appeal is unintentional and for bona fide reason, prayer is made for condoning the delay.

Recovery of the amount which has been claimed by the Bank has been allowed. It is only the interest from the date the account was declared NPA has been declined and the interest thereafter has been allowed. In fact, no huge amount is thus recoverable as is stated in the application.

I have heard the Counsel for the appellant. The only reason advanced by the appellant to explain this delay in filing the appeal is that the case was sent to the head office for examination, where it was considered and ultimately it was decided to tile appeal. This has been given as a reason to explain the delay and there is no other cause either pleaded or otherwise urged before me. It is also not explained as to how the delay of more than 100 days took place just for considering whether the appeal is to be filed or not.

As has been viewed in a number of judgments, a party is required to explain each day's delay and that too by giving sufficient cause and unless that is done, the delay cannot be condoned in routine. The Counsel for the appellant had taken time to produce judgments to show that the delay which takes place due to administrative and procedural causes in case of State versus citizen the Courts have to adopt a liberal approach while condoning the delay in the case of State which depends upon its official for its action. In this regard, the Counsel has taken support from the views in the case of Indian Oil Corporation Limited & Ors. v. Subrata Borah Chowlek & Ors., (2010) 12 SCC 419. Reference is also made to State of Karnataka v. Y. Moideen Kunhi (Dead) by LRs. & Ors., IX (2009) SLT 495=I (2010) CLT 87 (SC) =(2009) 13 SCC 192, where the Court has observed that the expression 'sufficient cause' as appearing in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice. It is observed that the Courts have to protect the public interest and the same cannot be rendered ineffective by skilful management of delay in the process of making challenge to the order which prima facie does not appear to be legally sustainable. Reference is made to Dilip Mitra & Anr. v. Swadesh Chandra Bhadra & Ors., IV (2002) SL T 129=(2009) 17 SCC 645, where it is observed that the Court should show some latitude in the matter of condoning delay and show leniency in cases involving institutions. In another case titled State (NCT of Delhi) v. Ahmed Jaan, 167 (2010) DLT 658 (SC)=II (2010) SLT 329=I (2010) CCR 465 (SC)=(2008) 14 SCC 582, the Court has held that proof of sufficient cause is a condition precedent for the exercise of extraordinary discretion vested in the Court for condonation of delay. It is observed that what counts is not the length of the delay, but the sufficiency of the cause and shortness of the delay is one of circumstances to be taken into account in using the discretion. As per the Court, what constitutes sufficient cause cannot be laid down by hard-and-fast rules. The Court has gone on to observe that although no special indulgence can be shown to the Government, which in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.

Where a Government servant had obtained certain pecuniary benefits which he was not entitled to under the rules and there was a delay of 195 days in filing of the appeal by the Government, it was held that the condonation of delay is within the discretion of the Court, by observing that it is a fit case for condoning the delay (See Chief General Manager, Telecom & Anr. v. G. Mohan Prasad & Ors., (1999) 6 SCC 67). In another case, Collector, Land Acquisition, Anantnag & Anr. vi Mst. Katiji & Ors., AIR 1987 SC 1353, the Court has observed that treatment similar to any other litigant ought to be accorded in the condonation of delay and step-motherly treatment to State Government in such matter is not warranted. It is also observed that the Court should adopt liberal approach. In Special Tehsildar, Land Acquisition, Kerala v. K V Ayisumma, III (1996) CLT 215 (SC)=(1996) 10 SCC 634, the Court has observed that the approach of the Courts should be pragmatic but not pedantic and the Government should not be insisted upon the explain the every day's delay. In State of Haryana v. Chandra Mani & Ors., III (1996) CLT 62 (SC)=AIR 1996 SC 1623, the Court has held that in view of the fact that the Government is a impersonal machinery and decisions are taken at slow pace certain amount of latitude is not impermissible. It is observed in State of Madhya Pradesh v. S.S. Akolkar, I (1996) CLT 471=AIR 1996 SC 1984, that the delay in official business requires broach and approach from public justice perspective.

Reference is also made to some judgments passed by the High Court of Delhi where it is observed that expression 'sufficient cause' must receive liberal construction so as to advance substantial justice.

I have considered the submissions made by the Counsel and have gone through the judgments relied upon by him. In Collector, Land Acquisition, Anantnag's case (supra) the Hon'ble Supreme Court has only observed that State Government should not be accorded a step-motherly treatment to condonation of delay and that the Court should adopt liberal approach. While considering the plea of the appellant Bank the same yardstick ought to be adopted as it is applicable to an individual litigant. In Shakuntla Devi Jain & Ors. v. Kuntal Kumari & Ors., AIR 1969 SC 575, the Court has observed that the words 'sufficient cause' should received liberal construction and that when no negligence nor inaction or want of bona fide is imputable to the party, the application under Section 5 should be allowed. This is neither the ground pleaded nor would arise in the present case. Except for stating that the case was sent to the head office where it kept lying for deciding whether the appeal is to be preferred or not, no other explanation is forthcoming to explain the delay. Even the movement of file is not disclosed or indicated in the application to see if there was sufficient reason or want of any bonafide or it was a case of simple inaction. If a file keeps lying on the table of an official for all this time simply for taking decision whether appeal is to be filed or not it can not be taken as a sufficient cause to explain the delay. Rather it would reflect inaction and sheer lethargy in his part and nothing else. Reference here can be made to the case Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr., AIR 2007 SC 924, where the Court has observed that the litigant, who is guilty of long delay, is deemed to have acquiesced or waived off his claim or right. It s also observed that the Court will not pass any such order, ignoring the delay on the part of the claimants merely because some others have got the similar relief. The Hon'ble Supreme Court has summarized the statement of law as contained in Halsbury's Law of England, which is to the following effect:

"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but asset after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy whereby his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."

Even if the ratio of law as referred to by the Counsel for the appellant applied to the present case, there are no sufficient cause or reason shown to condone the delay. I have considered the case from the angle if any public cause would suffer on account of the delayed approach on the part of the Bank. It may need a notice that the claim of the Bank has been allowed and it is only a part of the interest which was declined, for which even the Bank itself was under doubt whether to file an appeal or not. In my view no reasons are forthcoming to explain this long delay. I am, therefore, not inclined to condone this delay. The application seeking condonation of delay is dismissed.

The appeal, accordingly, is also dismissed on the ground of delay only.