w w w . L a w y e r S e r v i c e s . i n

Smt. Saraswati Devi Gupta V/S State Bank of Bikaner & Jaipur and Others.

    Misc. Appln. Nos. 350 and 351 of 2001 and Misc. Appeal No. 249 of 2001

    Decided On, 19 February 2002

    At, Debt Recovery Appellate Tribunal At Delhi


    For Petitioner: Vinay Gupta, Advocate And For Respondents: Aditya Tiwari, Advocate.

Judgment Text

Misc. Appl. No. 350 of 2001 :

1. This is an application moved by the appellant in Appeal No. 249/2001 for condonation of delay in filing the appeal against order dated 31.8.2001. From the certified copy of the impugned order filed, it transpires that application for a certified copy was moved on 3.9.2001 and the same was delivered to the appellant on 10.9.2001. Since time for filing the appeal is 45 days from the date of receipt of the copy of the impugned order, the appeal could be filed in time by 23.10.2001. In fact, the appeal has been filed on 16.11.2001, making a delay of about 25 days.

2. The grounds for condonation of delay, as have been taken in this application, are that from 23.9.2001 till 20.10.2001, the appellant was seriously sick and was suffering from acute depression and drowsiness. A certificate to that effect has been filed. It has been averred that when the appellant was in a position to sign the memorandum of appeal, it reached her Counsel at Delhi after signature on 25.10.2001 and by that date, time for filing appeal had already expired and, therefore, an application for condonation of delay was drafted and sent to the appellant at Ganganagar in Rajasthan and after the same was duly signed by the appellant and received by the Counsel for the appellant, the appeal along with application for condonation of delay was filed.

3. From the application under consideration, it is to be found that on 8.11.2001, the appellant signed the application for condonation of delay and the same was notarised on that very day by the Notary Public.

4. This application has been vehemently opposed by learned Counsel for the respondent.

5. Heard learned Counsels for the parties.

6. The appeal is against an order by which the Tribunal below has rejected appellant's application for setting aside order dated 22.9.2000, proceeding ex parte against the appellant. The appellant is stated to have been served by publication. The case of the appellant is that she was not served and she being an illiterate, old lady, could not see publication. The case of the appellant, as has been stated by learned Counsel for the appellant, is that the appellant was not served and she could not read the notice in the newspaper as she is illiterate and old lady being 75 years of age. She is stated to have got knowledge of the O. A. from one of her nephews. Undisputedly, the appellant stays in Ganga Nagar, Rajasthan and the O.A. was pending before Debts Recovery Tribunal, Jaipur. The appeal had to be filed in Delhi and since a lawyer at Delhi was engaged, some time must have elapsed for obtaining the signatures of the appellant on the memorandum of appeal and the application for condonation of delay under consideration. It has not been disputed that the appellant was seriously unwell during the period 23.9.2001 to 20.10.2001. Her Advocate at Delhi could not have imagined that appellant being sick would not be able to sign the memorandum of appeal in time so as to file the same before the Appellate Tribunal within the period of limitation. Therefore, I can accept that the contention for condonation of delay was not needed to have been drafted along with the memorandum of appeal. Therefore, when the memorandum of appeal, duly signed by the appellant, was received by the Counsel on 25.10.2001, an application for condonation of delay was a must. As such, after the application was drafted, it was to be sent to the appellant at Ganga Nagar for signatures. The same was signed on 8.11.2001 and after it was received by the Counsel at Delhi, the appeal was filed on 16.11.2001.

7. I have carefully considered the respective submissions made by the learned Counsels for the parties and have gone through the aforesaid facts and circumstances of the case. I rely upon the principles as laid down by Hon'ble the Supreme Court of India in Collector, Land Acquisition and Anr. v. Mst. Katiji : AIR 1987 SC 1353, wherein the following principles were enunciated:

1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested rights in justice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

8. In view of the above settled law on condonation of delay in filing the appeal, I am of the opinion that a lenient view should be taken in the matter and the aforesaid delay in filing the appeal be condoned.

9. The application is allowed and the delay in filing the appeal is hereby condoned.

Appeal No. 249/2001 :

Since delay in filing this appeal has been condoned, this appeal will be taken up for hearing on 30.4.2002. Respondent Bank to file reply to the main appeal within two weeks with advance copy to the appellant. Rejoinder, if any, with advance copy to the respondent, within a week thereafter.

Copy of this order be given dasti to learned Counsels for the parties.