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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M.S. Khandeparkar, J.
Shri Victor Albuquerque.....Applicant.
Versus
Saraswat Co-operative Bank Ltd. and others.....Respondents.
Misc. Civil Application No. 592-A of 1997, decided on 7-1-1998.
Advocates appeared :
S.G. Dessai, S.A. with D. Pangam, for the applicant.
U.R. Timble, for the respondent No. 1.
S. Vajifdar, L.N. Dholakia with J. Godinho, for the respondents 2 and 3.
Order XXXIX, Rules 1 and 2-Limitation Act, 1963, Section 5Appeal against order for temporary injunction filed beyond 182 days of limitation period-Condonation of delay-Sought on the ground that after taking advice from the counsel filed it-Held-If a party sleeps over his rights for 180 days beyond limitation period and seek advice, thereafter, for filing appeal, cannot be sufficient cause for condoning the delay.-In the present case the respondent No. 1 has filed affidavit through its Manager opposing the application for condonation of delay wherein it is disclosed that after the dismissal of the application for temporary injunction by the impugned order the respondent No.1 sanctioned loan of the amount of Rs. 115 lakhs to the respondent No. 2 by sanction letter dated 4th August, 1997 and disbursement of loan amount was started from 4th November, 1997 and till date had already disbursed a sum of Rs. 76.21 lakhs to the respondent No. 2 and since the appeal is sought to the filed mainly to restrain the respondent No. 1 from granting loan to the respondent No. 2 and the loan having already been sanctioned and granted, the appeal itself has become infructuous and, therefore, there is no ground for condonation of delay. The applicant has also filed affidavit in rejoinder denying the various statements in the affidavits-in-replies and has stated therein that on compromise talks having been commenced inn June, he thought that the filing of the appeal would only hamper and retard the talks. It is also stated therein that since 1994 the talks for compromise were going on and had broken down several times and during this time the applicant had been filing various suits and applications to protect his rights. Upon hearing the advocates for the parties and on going through the records, it is seen that the impugned order was passed on 15th March, 1997, the certified copy thereof was applied for on 17th March, 1997 and the date for taking delivery was given as 19th March, 1997. However, the same was collected on 20th March, 1997. In the normal course, therefore, the last date for filing the appeal was 17th June, 1997. It is the case of the applicant that a joint application for adjournment of the proceedings in the civil suit on the ground settlement talks being initiated was filed on 19th June, 1997 whereas it is the contention of the respondents that the said application was filed on 21st June, 1997. In any case, the said application was filed after the period of limitation prescribed for filing the appeal was over. It is apparent from the record, therefore, that till 17th June, 1997 there was no talks for settlement and the same were initiated only thereafter and there was no occasion for the applicant, either bona fide or otherwise, even to think that filing of appeal would retard the settlement talks. When a party allows the period of limitation to expire without filing the appeal and desires to claim sufficient cause for not filing the appeal within the prescribed period" the sufficient cause to the shown by the party would not be restricted only to the period beyond the period of limitation but the party has to justify as to why the period of limitation was allowed to be expired without taking proper action for filing of the appeal. It is now well established that the test to decide whether or not a clause is sufficient, is to see whether it could have been avoided by the party by the exercise of due care and diligence. In other words nothing shall be deemed to be done bona fide or in good faith which is not done with due care and diligence. The expression sufficient cause has necessarily to be a cause which is beyond the control of the party seeking condonation of delay. The existence of sufficient cause being a condition precedent for exercise of discretion bf the condonation of delay by the Court, in the absence of such sufficient cause being shown, the delay in preferring the appeal cannot be condoned. As regards the period of delay from the date of expiry of period of limitation till the date of filing of the appeal, it is see from the records that the applicant was fully aware at least from 20th October, 1997, if not earlier, that the talks for settlement had failed and he had even moved on application, being Civil Miscellaneous Application seeking the relief in the nature of injunction to restrain the respondent No. 2 from appointing additional directors. In other words, the excuse of settlement talks as well as to called bona fide thinking on the part of the applicant that the filing of the appeal would retard the talk of settlement was no more available to the applicant from 20th October, 1997 onwards. In any case, therefore, from 20th October till 13th December the alleged cause was not even in existence under any circumstance. As regards the grounds of realizing the implications of the impugned order only after obtaining advice of the Senior Counsel, the ground itself ex facie discloses that the applicant had been grossly and patently negligent and did not act with the due care and diligence to obtain proper advice. If a party sleeps over his rights for 180 days beyond the period of limitation and seeks advice thereafter for filing an appeal, this cannot be a sufficient cause for condoning the delay for the judicial pronouncement.
Section 5-Civil Judge order challenged by appeal-182 days delay in filing appeal-Certified copy of judgment obtained-Cause not sufficient condo-nation of delay not proper (Relied on AIR 1981 SC 733).-When a party allows the period of limitation to expire without filing the appeal and desires to claim sufficient cause for not filing the appeal within the prescribed period, the sufficient cause to be shown by the party would not be restricted only to the period beyond the period of limitation but, the party has to justify as to why the period of limitation was allowed to be expired without taking proper action for filing of the appeal. Merely justifying the delay beyond the period of limitation prescribed for filing the appeal would not automatically entitle the party to get the delay condoned.
Section 5-Condonation of delay for sufficient cause-Appeal delayed by 182 days-Order passed on 15.3.1997-Application for copy on 17.3.1997-Collection of copy on 20.3.1997-Appeal to be filed last date 17.6.1997, cause not shown sufficient to condone delay-Compromise conversion not proper cause-Reason for expire of limitation not shown-Appeal dismissed.-Nothing shall be deemed to be done bona fide or in good faith which is not done with due care and diligence. The expression sufficient cause has necessarily to be a cause which is beyond the control of the party seeking condonation of delay. The existence of sufficient cause being a condition precedent for exercise of discretion for condonation of delay by the Court, in the absence of such sufficient cause being shown, the delay in preferring the appeal cannot be condoned.
Section 5-See Civil Procedure Code, 1908, Section 96.
-Section 5-See Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2.
(a) Prior to the passing of the order dated 15th March 1997, the applicant had already filed a comprehensive suit claiming for several reliefs and as such the applicant thought that there was no need of filing an appeal against the said order dated 15th March, 1997.
(b) The applicant was holding compromise talks with respondent No. 3 regarding a global settlement between the parties and the same had reached in the final stage and the dispute seemed to be on the verge of amicable settlement and even adjournments were sought on several occasions on that count jointly by the parties.
(c) The applicant bona fide thought that the filing of an appeal at that stage may only retard the settlement talks between the applicant and respondent No. 3, and the applicant did not want to precipitate the matter at that juncture, and,
(d) It was only on 13th December 1997 on obtaining the advice of the Senior Counsel that the applicant realized that the implications of the findings of the trial Court in the said order would affect the proceedings in Special Civil Suit No. 41/97/B.
2.In the said application it has also been stated by the applicant that the talks between the parties failed sometime towards the end of November 1997 and, accordingly, the applicant decided to pursue the suits filed by him. The application has been supported by the affidavit of the applicant.
3.The application for condonation of delay is being objected to on various grounds by the respondents and in that regard the respondent No. 3 has filed his affidavit-in-reply. In the said affidavit, it is disclosed that on 6th May 1997 the applicant filed an affidavit-in-rejoinder in Civil Miscellaneous Application No. 69/97/B in Special Civil Suit No. 41/97/B wherein the applicant categorically stated that he would refer and rely upon the judgment and order dated 15th March 1997, that is, the impugned judgment for the purpose of determining its true scope and import. It is further disclosed in the said affidavit that the talks for settlement were resumed after 17th June 1997 and the application for adjournment on the ground of talks of settlement was made only after 21st June 1997 and on failure of such talks of settlement, the applicant filed another application, being Civil Miscellaneous Application No. 283/97/B in Special Civil Suit No. 41/97/B on 20th October 1997 seeking to restrain the respondent No. 2 herein from holding its Board Meeting on 22nd October 1997 and considering the appointment of Additional Directors pursuant to the notice dated 17th October 1997. The said affidavit is accompanied by copies of various affidavits and pleadings filed by the applicant in Special Civil Suit No. 41/97/B as well as some correspondence between the parties.
4.The respondent No. 1 has also filed affidavit through its Manager opposing the application for condonation of delay wherein it is disclosed that after the dismissal of the application for temporary injunction by the impugned order the respondent No. 1 sanctioned loan of the amount of Rs. 115 lakhs to the respondent No. 2 by sanction letter dated 4th August 1997 and disbursement of loan amount was started from 4th November 1997 and till date had already disbursed a sum of Rs. 76.21 lakhs to the respondent No. 2 and since the appeal is sought to be filed mainly to restrain the respondent No. 1 from granting loan to the respondent No. 2 and the loan having already been sanctioned and granted, the appeal itself has become infructuous and, therefo
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