Triveni Glass Ltd. vs Ruchi Sales Corporation

Tashi Rabstan, J.—This appeal, filed under Section 104 of the Constitution of J&K read with Order 43 Rule 1(d) of the Code of Civil

Procedure, is directed against the judgment and order dated 15.03.2014 passed by the Additional District Judge, Jammu, whereby the learned

trial Court dismissed the application filed by the appellant herein seeking condonation of delay along with the application for setting aside ex-parte

decree. Learned trial Court while dismissing the application held that the appellant herein has failed to demonstrate any sufficient ground for

condoning the delay in filing the application for setting aside ex-parte decree dated 25.07.2012 passed in civil suit No. 18/civil, titled as, M/s.

Ruchi Sales Corporation v. Triveni Glass Ltd. The facts in brief are that the plaintiff-respondent herein was working for defendant-appellant herein

as Consignment Agent. In March 1999 the General Manager (Operations) of appellant-defendant Company offered a deal for supplying more

goods material enhancing it to fifteen trucks glass load, which was also confirmed vide communication dated 22.03.1999. Thereafter, the

transaction between the parties commenced with effect from 01.04.1999 and remained in force up to ending November, 2000, when the said

arrangement came to be terminated. After termination of the arrangement, respondent-plaintiff claimed an amount of Rs. 15,08,926/- from the

appellant-defendant on the basis of statement of accounts. When the respondent-plaintiff failed to get the said amount from the appellant-

defendant, it filed a civil suit before the Court of learned Additional District Judge, Jammu, on 13.09.2001 for recovery of Rs. 15,08,926/-

alongwith interest.

Upon receipt of notice, the appellant-defendant appeared before the trial Court and filed the written statement. Learned trial Court after going

through the pleadings of the parties framed the issues on 04.06.2002 and fixed the case for 04.08.2009 for arguments on preliminary issues 1 & 2.

On the said date, the appellant-defendant did not appear. Learned trial Court initiated ex-parte proceedings against it, while allowing the

respondent-plaintiff to lead evidence. Accordingly, respondent-plaintiff led the evidence and the learned trial Court passed the ex-parte judgment

and decree on 25.07.2012 for recovery of Rs. 15,08,926/- along with 6% interest in favour of plaintiff and against the appellant-defendant with

costs. Thereafter, respondent-plaintiff filed an application before the trial court for execution of the judgment and decree passed in the civil suit.

Appellant-defendant after coming to know about filing of the execution application approached the trial Court for setting aside the ex-parte

judgment and decree dated 25.07.2012 along with an application for condonation of delay.

The precise ground taken in the application for condonation of delay was that the appellant-defendant came to know about passing of the ex-

parte decree only on 07.03.2013 when it received information from HDFC Bank, Branch Civil Times, Allahabad regarding the attachment of

decretal amount on the orders of the learned trial Court dated 20.02.2013.

Another ground taken in the application was that its counsel, namely, Sh. C.S. Gupta, neither informed the appellant-defendant nor did he

himself appear before the trial Court, while the appellant-defendant was under this impression that the suit was being contested by its counsel.

Learned trial Court after considering the arguments and in the light of reply filed by respondent-plaintiff dismissed the application for

condonation of delay along with the application for setting aside the exparte proceedings vide its order dated 15.03.2014. Hence, the appellant-

defendant has approached this Court by the medium of present Civil First Miscellaneous Appeal.

Heard learned counsel appearing for the parties and perused, the record of trial Court.

Admittedly, the suit was filed in the year 2001. Appellant-defendant also appeared in the suit and filed the written statement. However, when the

appellant-defendant did not appear in the suit, the learned trial Court vide its order dated 04.08.2009 initiated ex-parte proceedings against it.

Thereafter, respondent-plaintiff was allowed to lead evidence and the suit remained pending on the docket of the trial Court for about 3 years.

Finally, the learned trial Court vide its judgment, dated 25.07.2012 passed ex-parte decree in favour of respondent-plaintiff and against the

appellant-defendant. Thereafter, an execution application came to be filed by the respondent-plaintiff before the learned trial Court. After receiving

Information from its Bank that its account has been attached to the extent of decretal amount, the appellant-defendant only thereafter approached

the trial Court on 04.04.2013 by filing an application for setting aside the exparte decree. Since there was delay in filing the application, appellant-

defendant also filed an application for condonation of delay.

Admittedly, the appellant-defendant was very much aware about the pendency of suit before the learned trial Court. However, there is not even

a whisper in the entire application for condonation of delay as to why the appellant-defendant did not bother to enquire about the status of the suit

for almost about four years, i.e., with effect from 04.08.2009 when exparte proceedings were initiated against it. On the other hand, respondent-

plaintiff was all along contesting the suit before the trial court since 13.09.2001 when it filed the suit till 25.07.2012 when the judgment came to be

passed in its favour. Respondent-plaintiff contested the suit for about 11 years, whereas appellant-defendant after filing the written statement never

enquired about the status of case either from its counsel or from the trial Court, more particularly, with effect from 04.08.2009 when it came to be

proceeded against exparte. Thus, it seems, the appellant-defendant was totally callous in pursuing its case before the trial Court. Further, it has

failed to produce any documentary evidence that it had ever made any effort to enquire about the status of the case, except for taking vague plea

that it had engaged the counsel and was under this impression that its counsel was contesting the case.

The Law of Limitation is founded on public policy and is to ensure that the parties do not resort to dilatory tactics and seek remedy without

delay. The Courts are to condone the delay if sufficient cause is shown. Adopting a liberal view in condoning delay is one of the guiding principles,

but liberal approach cannot be equated with a licence to approach the Court-at-will disregarding the time limit fixed by the statutes. No doubt the

appellant-defendant contested the civil suit before the learned trial Court and had filed the written statement, but, thereafter, it never bothered to

enquire about the progress of its case for about four years. In such circumstances, acts of negligence and inaction do not constitute reasonable

cause. In the matter of condonation of delay, sufficient cause is required to be shown thereby explaining the sequence of events and the

circumstances that led to delay. In the present case same is absent.

The Apex Court in a recent judgment delivered in case Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and

Others, , has held as under:

From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the

courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms ""sufficient cause"" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are

basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note

of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required

to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted

whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as

the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle

cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other

side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of

limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is

founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

I have gone through the trial court record. In my considered view the trial Court was fully justified in dismissing the application for condonation

of delay as no sufficient cause was shown in the application to condone the delay in filing the application for setting aside the exparte judgment and

decree.

Accordingly, on consideration of totality of the facts and circumstances of the case and the law laid down by the Apex Court, referred to

hereinabove, I am constrained to dismiss the appeal along with the CMA. Accordingly, the same is dismissed. Registry is directed to forthwith

send down the record along with a copy of this judgment.