IMPORTANT POINT
The delay in proceedings cannot be dismissed when there are prima facie merits, and leniency should be applied in construing delays.

JUDGMENT :

1. The present petition is filed by the petitioners under Article 227 of the Constitution of India challenging the Order dated 21.09.2022 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Misc. Application No.80 of 2021, whereby the learned Tribunal has dismissed the application for condonation of delay preferred by the petitioner in appeal against the judgment and order dated 30.01.2018 passed in Lavad Case No.11 of 2017.

2. The facts of the present case in nutshell are as under:-

2.1 It is the case of the petitioners that the respondent no.1 bank had filed the Lavad Case No.11 of 2017 before the Board of Nominees, Bhavnagar, which was proceeded ex-parte, in which, the petitioners were not informed and the judgment was pronounced on 30.01.2018. Being aggrieved by the order of Board of Nominee, the petitioners preferred appeal with application for condonation of delay.

2.2 It is further say of the petitioners that they are staying at Savarkundla and the summary proceedings were conducted in the Board of Nominee at Bhavnagar being Lavad Case No.11 of 2017. It is further stated the summons were never served to the petitioners and the respondent no.1 – bank proceeded an ex-parte.

2.3 It is further stated that pursuant to the order of Board of Nominees, Bhavnagar passed in Lavad Case No.11 of 2017, an Execution Petition No.9 of 2018 was filed and the summon was received by the petitioners. On 14.12.2021 the petitioners came to know about the proceedings and the certified copy of the record was received by the petitioners on 21.12.2021. Therefore, the petitioners preferred an appeal alongwith the application for condonation of delay. The said application for condonation of delay came to be dismissed by the learned Tribunal vide its order dated 21.09.2022 in Misc. Application No.80 of 2021. Being aggrieved by the impugned order, the petitioners have preferred present petition.

3. Though the respondents served with the notice of rule issued by this Court, yet they have chosen not to appear before this Court either in person or through an advocate and oppose this application.

4. Considering the fact that the petitioners have already deposited an amount of Rs.5,80,000/- towards loan facility from 2018 to 2021, but due to Covid Pandemic, the petitioners were unable to deposit the loan amount and therefore, the proceedings was initiated by the respondents, which was no knowledge of the petitioners. Therefore, the impugned order was passed an ex-parte by the learned Board of Nominees, Bhavnagar. When the petitioners came to know about the order, they immediately approached the learned Tribunal by way of filing an appeal alongwith the application for condonation of delay. Under the circumstances, the petitioners constrained to approach this Court with a request to direct the Tribunal to condone the delay in preferring appeal. However, considering the facts and reasons recorded in the application in Paragraph-5 and 6, the learned Tribunal was pleased to reject the said application without considering the merits of the matter and without considering the fact that the suit was decided ex-parte against the petitioners though the petitioners regularly deposited amount of installment and therefore, the present petitioners approached this Court.

5. Heard the learned counsel appearing for the petitioners. I have considered the submissions made on behalf of the petitioners and considering the fact that the petitioners have availed the financial assistance from the respondent – bank in the year 2014 as the cash credit facility advanced by the respondent – bank in favour of the present petitioners in the year 2014. Thereafter, the petitioners were regularly paid the installment and till 2018, they have almost deposited an amount of Rs.5,80,000/- with the respondent – bank, but due to Covid Pandemic, the petitioners could not manage to pay regular installment and under these circumstances, the suit was filed by the respondent –