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2005 Supreme(Cal) 762
High Court Of Calcutta
Bhaskar Bhattacharya, Jayanta Kumar Biswas
STATE BANK OF INDIA - Appellant
Versus
TARIL APPLIANCES AND EQUIPMENT PVT.LTD. - Respondent
Appeal 331 Of 1993
Decided On : 12/16/2005
The court should take a liberal approach in condoning delay in filing applications for restoration of appeals, especially when the appellant is a Bank and the delay is due to transfer of Officers in the concerned branch leading to a communication gap.
Headnote:
RESTORATION OF APPEAL - CONDONATION OF DELAY - SUFFICIENT CAUSE - TRANSFER OF OFFICERS IN BANK - COMMUNICATION GAP - LIBERAL APPROACH - DELAY IN FILING APPLICATIONS EXPLAINED - APPEALS RESTORED.
Fact of the Case:
The appellant, State Bank of India, filed two appeals against an order dismissing its suit for non-service of summons on two guarantors (respondents). The appeals were dismissed for default on 19th March 2002. The appellant filed applications for restoration along with an application for condonation of delay in filing these applications on the ground that the dealing assistant of the learned advocate-on-record of the appellant who was looking after the matter could not come to Court due to his personal difficulty and consequently, the learned advocate-on-record also could not look after the matter.
Finding of the Court:
The court held that sufficient cause was made out for non-appearance of the learned Advocate for the appellant when the matters were dismissed for default as the appellant should not be penalized for the fault of its lawyer or the dealing assistant of the lawyer. The court also held that the appellant was prevented by sufficient cause from filing the application for restoration within the period of limitation due to the transfer of the Officers of the concerned branch, which led to a communication gap between the Office of the learned advocate and the Bank.
Issues: 1. Whether there was any cogent ground of non-appearance of the learned Counsel when the matter was called? 2. Whether appellant was prevented by sufficient cause from filing the present applications for restoration within the period of limitation?
Ratio Decidendi: 1. The term "sufficient cause" appearing in Order 41 Rule 19 of the Code of Civil Procedure should be construed more liberally than the One appearing in Order 9 Rule 9 of the code because in case of an appeal, a litigant is not supposed to appear on the date of hearing once he has engaged a lawyer to represent him. 2. The court can take judicial notice of the fact that the State Bank of India is involved with various litigations where the Bank being unable to get back loan advanced to the citizen approaches the Court for recovery of its money. 3. The court should take a liberal approach in the matter and instead of giving a further direction to affirm supplementary affidavit disclosing the names of the Officers posted at the concerned branch at the relevant time, to believe the case of the appellant that the dismissal orders in these cases remained unnoticed for a long time although the learned Advocate for the appellant duly communicated such orders.
Final Decision: The court allowed the applications and restored the appeals after recalling the order dated March 19, 2003 in the aforesaid two appeals.
( 1 ) THESE are the applications for recalling order dated 19th March, 2002 passed by a Division Bench dismissing those appeals for default along with the prayer of condonation of delay in filing these applications.
( 2 ) BEING dissatisfied with an order dated 19th March, 1993 passed by a learned Single Judge thereby allowing an application of respondent Nos. 2 and 3 for taking of the plaint out of the file and dismissing the suit after rejecting an application filed by the applicant for extension of time for service of summons upon those respondents, the present applicant preferred two separate appeals before the Division Bench of this Court. On 19th March, 2002 when those appeals were called for hearing, as none appeared on behalf of the appellant those appeals were dismissed tor default. It may be mentioned herein that at the time of dismissal of those appeals for default even none appeared on behalf of the respondents.
( 3 ) SUBSEQUENTLY, more than three years thereafter, in the month of august, 2005, the present applications for restoration along with an application for condonation of delay in filing these applications have been filed on the ground that on the date fixed for hearing, the dealing assistant of the learned advocate-on-record of the applicant who was looking after the matter could not come to Court due to his personal difficulty and consequently, the learned advocate-on-record also could not look after the matter and as such, the appeals were dismissed for default.
( 4 ) IN the application it is further stated that although the appellant's advocate-on-record by letter dated 19th March, 2002 had informed the appellant about the aforesaid dismissal of the appeals, the appellant in its turn could not send any instruction to the Advocate-on-record of the appellant as the Off icers-in-charge of the concerned branch of the appellant were transferred from time to time.
( 5 ) IT is further stated that only on 9th June, 2005, the Advocate-on-record further sent a letter to the Bank reminding the Bank of the dismissal and consequently, on 7th July, 2005 the appellant disclosed the name and designation of the person who would sign the petition for taking necessary steps and as such, due to such communication gap there has been delay in filing the present applications.
( 6 ) THE aforesaid applications are opposed by the respondent Nos. 2 and 3 alleging that the appellant was all along negligent as would appear from the conduct of the appellant from the very beginning. It is pointed out that although the appellant filed the suit on 4th March, 1989 no step was taken for service of notice upon the respondent Nos. 2 and 3 within the time prescribed by the Original Side Rule, as a result, in the month of June, 1992, the respondent nos. 2 and 3, of their own made an application for dismissal of the suit for non-service of the writ of summons. After receiving the copy of such application, the plaintiff-Bank prayed for issue of summons and service upon the respondent nos. 2 and 3 on extension of time.
( 7 ) THE Court, however, dismissed the Bank's application for extension of time and allowed the application of the respondent Nos. 2 and 3 thereby dismissing the suit as agains't them.
( 8 ) IT is further stated that being dissatisfied, the Bank had preferred the aforesaid two appeals and even at the time of hearing of those two appeals, none appeared on behalf of the Bank. It is further pointed out that although those appeals were dismissed for default on 19th March, 2002 and according to the averments made in the application, such fact was immediatejy communicated to the plaintiff-Bank, the Bank authority did not take steps for restoration in course of the next three years and more and no explanation was given in the application as regards such inaction. According to the respondent nos. 2 and 3, by merely making a vague statement that the Officers of the bank were transferred, the appellant did not disch
