J and K State Industrial Dev. Corp. vs Bank of Maharashtra, Branch Srinagar

Bashir A. Kirmani, J.—Through this petition the petitioner/appellant seeks condonation of more than 6 years and 4 months delay involved in

institution of firs, appeal against the Bank Court decree for an amount of Rs. 2, 19, 41,911.50 purported to have been awarded against them on

16.2.1998 in ex-parte. Despite opportunities nobody has appeared for respondent/Bank on two consecutive hearing even while they were

furnished a copy of the petition on 9.6.2005 with direction to file objections within three weeks there from.

However, grounds pleaded in support of the petition are that appellant/petitioner acquired knowledge of aforesaid ex-parte decree on

27.11.1998 and filed an application under Order 9 Rule 13 CPC on 2.12.1998 alongwith an application for condonation of delay involved therein.

In response to notice respondent No. 2 entered appearance and sought time for filing objections which was however not done despite many

opportunities even while petitioners counsel continued to appear till 4.9.2000. Still then the application for condonation of delay was some time

before that wrongly dismissed in default regarding which petitioner filed an application for restoration which was dismissed by trial court on

31.10.2001. Order of trial court was challenged by petitioner through a Civil Revision which was dismissed on 8.5.2003 against which the

petitioners took a Latters Patent Appeal which too was ultimately dismissed on 20.7.2004 whereafter the Governing Board of

petitioner/Corporation decided to file this appeal alongwith the petition for condonation of delay involved. During course of his submissions the

petitioners counsel while reiterating contents of petition has submitted that delay involved in the matter was purely attributable to the over sight

committed by trial court in dismissing his condonation application (pertaining to application filed by him under Order 9 Rule 13 CPC for setting

aside order of trial court) which as a matter of fact triggered a chain of litigation as aforesaid which ultimately resulted in late institution of this

appeal. Since respondents have not chosen to file objections to petitioners' application and anybody is present on their behalf to be heard in the

matter, there is virtually nothing on record to rebut the factual and other pleas taken by petitioner, with the result that the whole matter has got to be

considered on petitioners' pleadings and submissions.

Law is well settled that ordinarily the parties should be left to contest their causes on merits rather than allowing procedural technicalities to

come in the way of substantial hearing of disputes particularly those like the present which involves extremely high stakes. It would be appropriate

to recall that the petitioners have suffered an exparte decree for more than rupees two crores with 20% interest per annum awarded thereupon and

chargeable on quarterly rests which would mean an annual addition of nearly Rs. 50.00 lacs to the decretal amount while the total loan obtained by

petitioner/Corporation in 1984 appears to have been Rs. 40, 00,000/- only. It would be needless to say that petitioner/corporation being a public

undertaking; the matter involves the interest of State exchequer also which fact further recommends consideration of the matter on its merit rather

than throwing out the petitioner/appellant on mere technicalities. At the same time, however, the legitimate interest of respondent even while they

are unrepresented has to be taken care of.

In backdrop of circumstances catalogued and with a view to facilitate hearing of this appeal on merits, the delay involved in its institution is

condoned on the condition that appellants shall deposit the amount of Rs. 40,00,000/- i.e. the amount stated to have been, borrowed by them

from respondent/Bank, in this Court within a period of eight weeks from now alongwith costs of Rs. 10,000/- to be deposited in (AWF) S/B A/C

No. 1476 in J&K Bank Extension Counter, High Court, Srinagar within same period of time. After deposit of amount aforesaid and the costs, the

main appeal be listed on an early date.

The petition for condonation of delay stands accordingly disposed of.