RMS CONSULTANTS PVT LTD vs PROACTIVE UNIVERSAL TRADING PVT LTD & ANR

VALMIKI J. MEHTA, J (ORAL)

I.A. No. 5492/2018 (for delay)

1.This application is allowed and the delay of 4 days in filing O.A. No. 43/2018 is condoned.

I.A. stands disposed of.Â

O.A. No. 43/2018 (against order dated 23.2.2018 filed by plaintiff) 2. By this Chamber Appeal the plaintiff impugns the order of the Joint Registrar

dated 23.2.2018 by which the Joint Registrar has refused to condone the delay of 265 days in re-filing the suit. The impugned order reads as under:-

“I.A. no. 11744/2016(under section 151 CPC filed by plaintiff for seeking condonation of delay in re-filing of original suit) Heard on I.A.

Record perused.

As per averments made in application, there is delay of 265 days in refiling of the original suit.

The plaintiff admittedly filed the present suit on 19.11.2015. The registry returned the suit with defects on 30.11.2015. The plaintiff after removal of

defects re-file days in removal of objections of the registry and re-filing of the suit.

The main reason for condonation of delay is misplacement of the file. The file is reported to have been traced only on 02.09.2016 in the evening.

In the case of M/s V2 Retail Ltd vs M/s S.S. Enterprises decided on 25.09.2014, Hon’ble High Court of Delhi held that “the law regarding

condonation of delay in re-filing is well settled. Even for condonation of delay in re-filing, the petitioner is required to show sufficient cause which

prevented him from re-filing it within the time given by the Registry.†In the case of Brij Mohan Vs Sunita, 166 (2010) DLT 537 Hon’ble High

Court of Delhi while dealing with condonation of delay in re-filing and discussing the expressions “sufficient cause†has clearly held that the court

cannot mechanically condoned the delay in re-filing the appeal if no reasonable ground is shown at all.

In the present case, loss of file for about 9 months is nothing but shows the negligent act on part of plaintiff, which cannot be considered a good

ground for condonation of delay. Mere, vague plea has been taken by the plaintiff. There is no averment in the application as to under what

circumstances the file was lost and how it was traced. It is also not mentioned as to who lost the original file and in what circumstances and how the

file was traced.Â

The delay on the part of plaintiff for around 265 days is not properly explained. Valuable rights have accrued in favour of defendant. The explanation

furnished by plaintiff in re-filing of the suit is not bona fide. The plaintiff has been very casual and negligent in pursuing his case. Keeping in view

the aforesaid facts into account, no tenable ground for condonation of delay is made out. Hence, the application for condonation of delay in re-filing

of the original suit is hereby dismissed.

3.The cryptic application which was filed by the plaintiff for condonation of delay in the re-filing of the suit, and which does not contain sufficient

cause or reason for condonation of delay, reads as under:-

“1. That the present Suit has been filed by the Plaintiff for recovery of Rs.4,89,35,000/- (four crores eighty nine lacs thirty five thousand only) being

the principal amount along with interest @ 18% per annum till the date of actual payment.Â

2.That the accompanying Suit was filed on 19.11.2015 and the Registry of this Hon’ble Court returned the Suit with defects on 30.11.2015.

3.Pursuant to the Defects being notified to the plaintiff on 30.11.2015, the counsel for the Plaintiff informed the plaintiff but in the meantime the

original file is misplaced and despite efforts the same could not be traced. However, the same is traced only on 2.09.2016 in the evening and the

objections are removed and the said suit is being filed without any further delay.

4.That if the delay in refiling is not condoned, the plaintiff shall suffer irreparable loss and injury for no fault on its part.

5.Thus, it is expedient in the interest of justice that the delay in refiling the said suit may kindly be condoned, which is neither intentional nor deliberate.

6.It is submitted that no prejudice will be caused to the defendant, if the delay in refiling is condoned. That the Plaintiff has a very good case on

merits. Balance of convenience is in favour of the Plaintiff and the Plaintiff shall suffer irreparable injury if the aforementioned delay in refiling the

Plaintiff is not condoned.â€​

4.It is seen that objections which were raised by the Registry were very minor clerical errors to be corrected and surely a huge delay of 265 days

cannot be permitted to be condoned, that too on vague averments which have been made in I.A. No. 11744/2016. No fault therefore can be found

in the impugned order of the Joint Registrar dated 23.2.2018 dismissing the suit by refusing to condone the delay in re-filing.Â

5.Independent of the issue of there should be condonation of delay in re-filing the suit, I have examined the suit as to whether the suit is filed within

limitation.  Â

6.It is seen that by the suit plaintiff seeks recovery of Rs.4,89,35,000/- advanced by the plaintiff to the defendant no. 1. Plaint, in my opinion,

deliberately does not give the dates when the different amounts totaling to Rs.4,89,35,000/- were advanced, inasmuch as, factually it is seen that the

amount which totalled to a sum of Rs.4,89,35,000/- by the plaintiff in favour of the defendant no. 1 are with respect to drawing of entries commencing

from the year 2008 with the last entry being dated 17.11.2012, and as seen from the copy of the account filed by the plaintiff as a document. The

present suit is admittedly filed on 19.11.2015 i.e well beyond the period of the last entry, taking the same reflecting advance made by plaintiff to

defendant no.1, which is actually dated 19.10.2012. In law, once there is no date fixed for repayment of the loan, a period of three years of

limitation commences from the date of grant of loan as per Article 19 of the Limitation Act, 1963. With respect to loans given of the year 2008 the

suit is barred by limitation because it had to be filed by the year 2011 and considering even all the entries by which loans have been given by the

plaintiff to the defendant no. 1, and the last entry of payment to the defendant no. 1 being dated 19.10.2012, the present suit which is filed on

19.11.2015 is in fact beyond three years of the last entry, what to talk of earlier entries which are of around 4-8 years earlier. Therefore, the suit is

also otherwise barred by limitation. Â

7.Dismissed.