Unifocus Company Pvt. Ltd. vs Sai Television Ltd.

Amitava Lala, J.—This is an application under Order 9 Rule 13 of the CPC made by the Petitioner with a prayer for condonation of delay.

Original Defendant being the Petitioner took out this application on September 14, 1998, for setting aside a decree passed by this Court on April 16, 1998.

The Petitioner contended that in an application for extension of time to file written statement before the learned Master of this Court on July 24, 1998, it transpired that a decree was passed in the suit on April 16, 1998. The Defendant had no knowledge of passing such decree from April 16, 1998, till July 24, 1998. They further contended that immediately thereafter their Advocates-on-record took steps for procuring a copy of the judgment and decree dated April 16, 1998, which was made available to them on April 17, 1998. The instant application was made ready in the second week of August, 1998.

According to the Petitioner, the deponent, who has affirmed the affidavit in support of the petition was not available before the last week of August, 1998, due to serious personal difficulty arising out of an illness of member of his family and could not contact the concerned Advocate-on-record appearing for the Petitioner before such time.

The Petitioner contended that there was no lack of diligence. There was just and reasonable cause for the delay in making the instant application. Therefore, the delay is to be condoned by this Court for the ends of justice.

In merit the Petitioner itself contended that the writ of summons along with a copy of the plaint was served on the address of the Defendant on September 29, 1997. The Petitioner, themselves admitted in the petition that the writ of summons was received by the Defendant on the above date in the usual course of business.

According to them that at the material point of time one Mr. P.Y.N. Sastry was Manager-Legal and In-Charge of the legal matters of the then Defendant. The Petitioner company forwarded the said writ of summons along with a copy of the plaint to said Mr. Sastry. Mr. Sastry was duly authorised by the Defendant to engage lawyers, to sign and execute vokalatnama and also to sign and verify pleadings on behalf of the Defendant. In the usual course of business, said Mr. Sastry was required to appoint a lawyer in Calcutta, send him the original or a copy of the writ of summons, along with a copy of the plaint, sign and execute vokalatnama in favour of the said lawyer and issue instructions to the said lawyer to enter appearance in the said suit and to take all other steps in the matter.

The Board of Directors of the Petitioner/original Defendant company had bona fide be life that Mr. Sastry will do the needful in the aforesaid suit by virtue of the said power and authority conferred upon him by the Defendant and have no reason to disbelieve that he will not discharge the duties.

The then Plaintiff had not taken out any interlocutory application. By reason of that fact, the Defendant was only required to take those steps necessary to make the suit ready for hearing.

The said Mr. Sastry failed to discharge the duties in taking steps and did not keep his superiors informed of such neglect and failure.

Said Mr. Sastry went on leave between October, 1997 and February, 1998 on the ground of personal problem in his family and thereafter resumed duty in February, 1998. Thereafter he left the service of the Petitioner company on February 28, 1998.

From March 1, 1998, Mr. A. Chandra Moulee-swaran joined in place and instead of Mr. Sastry and started looking after the legal matters of the Defendant.

As no notice of the interlocutory application was received by the Petitioner company, the original Defendant in the suit, the said new appointee was in a bona fide believed that Mr. Sastry had taken all steps in the suit.

However, in the middle of June, 1998 senior officers of the Defendant made a general enquiry with said Mr. Moulee-swaran as to the progress in the concerned department, where upon it transpired in the end of June, 1998 that said Mr. Sastry had not even engaged any lawyer in Calcutta for the purpose of the proceeding with the suit and, therefore, no steps were taken.

On July 2, 1998, the present Advocate-on-record was engaged, who, in turn, entered appearance in the suit and filed vokalatnama in favour of the Petitioner/ original Defendant. Thereafter the engaged Advocate-on-record took steps by writing a letter to the Plaintiff''s Advocate and upon getting no reply made an application before the learned Master for extension of time to file written statement on July 8, 1998. The matter moved before him on July 15, 1998, but none appeared on behalf of the Plaintiff, the application was adjourned till July 20, 1998, and ultimately on July 24, 1998, they came to know about the disposal of the suit.

Mr. I.P. Mukherjee, learned Counsel appearing in support of the Petitioner contended that Court should take liberal approach in the circumstances specially in a question of substantial justice when no negligence or willful default is present on the part of the Petitioner herein. He stated that even in merit there was just and reasonable cause which prevented the then Defendant from appearing and contesting the suit at the time of hearing.

Therefore the application has two parts one is explanation as to the delay in making an application and another is explanation as to the non-appearance in contesting the suit.

In support of the above two contentions Mr. Mukherjee, learned Counsel cited various judgments being The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, and relied upon its head notes, Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and relied upon para 3 therein, Dulal Chandra Ojha v. Banamali Guchait and Ors. AIR 1987 Cal. 91 and relied upon head note ''A'' and para 4 therein, AIR 1948 362 (Nagpur) therein, Union of India v. V.P. Kochhar AIR 1984 Del. 10 and head note ''A'' therein, Punjab Small Industries and Exports Corporation Ltd. and Ors. v. Union of India and Ors. 1995 (Suppl.)4 S.C.C. 681 in para 4 therein.

By citing State of West Bengal v. Administrator, Howrah, (Supra) he contended that there should be a literal approach of the Court as to the question of sufficient cause and also to the question of limitation so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. On Calcutta LA. v. Mst. Katiji (Supra), Dulal Chandra Ojha v. Banamali Guchait (Supra) Kashirao Panduji v. Ram Chandra Balaji (Supra) and Punjab S.I. Industries v. Union of India (Supra) he reiterated the similar submissions.

Although the above judgments are similarly placed on to the questions of delay in making an application as well as sufficient cause for recalling and setting aside a decree and taking a liberal approach by the Court but the judgment in Union of India v. V.P. Kochhar (Supra) also being question of sufficient cause is slightly different factually wherein summons was lost in transit where the delay was condoned and the Defendant was allowed to proceed with the suit considering the same is sufficient cause for non-appearance of the Defendant.

Mr. Asim Kumar Banerjee, learned Counsel on behalf of the Respondent opposed this application on the following grounds:

(a) Writ of summons was admittedly served upon the then Defendant company, a juristic person and the explanation of their representative being Mr. Sastry is unacceptable since the decree was passed long after the purported leaving of service by Mr. Sastry;

(b) Admittedly representatives of the then Defendant company discovered the fact of not taking steps by them in the suit in June, 1998 but did not explain as to the question of taking of proper steps till such time;

(c) There was no application for drawing up or completion of the decree or for obtaining certified copy and the copy on which the Petitioner is relying upon an unauthorised copy of the decree and no explanation is set forth about the knowledge of receiving such copy;

(d) The decision of the Court is on merit, therefore, applicability of Order 9 Rule 13 of the CPC is also under challenge;

(e) No explanation is given about prevention in coming to Court is given by the Petitioner and the application is made in casual manner;

(f) Delay cannot be condoned in the circumstances and even if for the sake of argument delay is condoned but for the same order passed by the Court cannot be set at ''not'' for the circumstances.

In support of his contentions he distinguished the judgments cited by the learned Counsel appearing for the Petitioner as to the question of sufficient cause and liberal approach in condoning the delay of making an application as well as recalling and/or setting aside the decree and also cited two decisions on the similarly placed points being P.K. Ramachandran Vs. State of Kerala and Another, and Purnima Dutt and Ors. v. Ratan Kanti Soor and Ors. 1998(2) C.L.J. 424. The first of the aforesaid judgment speaks that law of limitation has to be applied with all its rigour prescribes by statute and the Courts have no power to extend period of limitation on equitable grounds and the judgment of the Calcutta High Court passed by this Court speaks a negligent litigant is not entitled to indulgence or grace.

In reply, Mr. Mukherjee, learned Councel contended that two factors are to be considered in the case of sufficient cause and liberal approach which are (I) gross negligence on the part of the defaulting party is present or not; (II) wilful default on the part of the party or not. He contended that where the above are not present indulgence can be given to a party.

I have travelled carefully within the serpentine lanes of the factual and legal aspects and come to the following finding with observations. Prima facie, I am not satisfied with the explanation as to the question of limitation as described in the petition itself. The date of the decree is on April 16, 1998. The date of knowledge.

Is on July 24, 1998. The date of taking steps by the deponent is last week of August, 1998. The date of affirming affidavit is on September 9, 1998. Therefore, there is no proper explanation in between April 16, to July 24, 1998, even if the Court accepts that a try is made in giving explanation but there is no explanation as to why from July 24, 1998, till September 9, 1998, in which date the affidavit was affirmed in support of the petition. Explanation of each days delay was discarded ay the Supreme Court with costly remarks that as to why no explanation as to the hour and minute but latest concept as transpired from P.K. Ramachandran v. State of Kerala (Supra) again accepted the old view about the condonation of delay by accepting the position that law of limitation has to be applied with all its rigour prescribed by the statute and the Courts have no power to extend period of limitation on equitable grounds and that too in a case where the state was the party. Therefore, the scope and ambit of the liberal approach cannot be accepted by this Court as a matter of grace. Move over, this Court is not satisfied with the explanation as to the sufficient cause. On top of it in the case of setting aside a decree passed ex parte or to re-rear an appeal decreed or heard ex parte Article 123 of the Limitation Act, 1963 will be applicable. Such Article says that 30 days period is fixed period of limitation. From the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Therefore, there are two aspects firstly from the date of decree and secondly in case of non-service of notice from the date of knowledge of the decree. In the instant case, it is an admitted position that the summons were served, therefore, there is no scope of construing the case for making an application from the date of knowledge of the decree but from the date of the decree. Therefore, there is no question of condonation of delay specially keeping parity with the view of the Supreme Court. Therefore, the delay in making an application cannot be condoned.

Be that as it may, since over enthusiast argument was advanced by the rival parties in merit along with the question of limitation this Court has no other alternative but to deal with for sake of justice. But even it transpired that no literal approach should be taken in respect of this Petitioner because the explanation was given by them is not at all acceptable by this Court. It is an admitted position that writ of summons were served upon the Defendant on September 29, 1997. It is unbelievable that on and from September 29, 1997, on which date admittedly the writ of summons was served upon the then Defendant and till end of June, 1998, there was no knowledge of the Defendant company, a juristic person about the Court proceeding and even from end of June, 1998, they got no opportunity to enquire about the fate of the suit but hurriedly made an application for the purpose of extending the time for filing written statement and ultimately came to know about the fate of the suit on July 24, 1998, and even thereafter took time till September 9, 1998, for the purpose of affirming affidavit in support of the application so that it can be taken out before the Court.

The explanation about the representative of the company one Mr. P.T.N. Sastry is not at all acceptable by the Court specially for the two reasons that suit was decreed on April 16, 1998, while the said person purportedly left the services of the then Defendant company on February 28, 1998. There is no enquiry about the affair of the suit and the company was sleeping tight with the thought that said Mr. Sastry will take care of from the date of service of the writ of summons on September 29, 1997, without any enquiry whatsoever but when a different gentleman was engaged on March 1, 1998, a general enquiry was made hurriedly even within two months thereafter i.e. in June, 1998. This Court is curious to know as yet that if there is a scope of general enquiry and it has been from the same within a period of two months from the date of joining of new incumbent but why no such general enquiry was made from the date of receiving writ of summons on September 29, 1998 till February 28, 1998, when Mr. Sastry left the services.

Taking into totality of the case, my view is that there is a gross negligence and wilful default available from the pleadings itself. An incidental question arose as to the question of jurisdiction at the time of passing the decree but such question is irrelevant for the purpose of disposal of the application when before passing a decree the Court considered the question of jurisdiction and merit at length before passing such decree as would be evident from the decree itself.

Therefore, the application cannot succeed and the same is dismissed. Interim order, if any, is vacated. No order is passed as to costs.

All parties are to act on a signed copy minute of the operative part of the order.

Application dismissed.