Dismissed

Canara Bank v. coromandel indag product india limted

DRAT19 Oct 2022

Case brief

AI extract

What is this about?

Single judge of DRAT at Chennai dismissed an application seeking to condone a delay of 424 days in filing an appeal. The court held that the appellant bank's reasons concerning the advocate's personal schedule and health did not meet the standard of 'sufficient cause'.

What did the court decide?

Application for condonation of delay dismissed; underlying appeal rejected with no order as to costs.

Canara Bank versus coromandel indag product india… — Civil Procedure and Limitation | DRAT (2022)

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IA 284/2020 in AIR 84/2020

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 19^th of October, 2022

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar

CHAIRPERSON

IA 284/2020

AIR 84/2020

(MA No. 24/2008 IN OA 17/1996 before DRT-I, Chennai)

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Between

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Canara Bank, Asset Recovery Management Branch, Previously at : Spencer Tower-II, Anna Salai, Chennai – 600 002.

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Now at ;

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2^nd Floor, Circle Office Building No.563/1, Anna Salai Teynampet, Chennai-600 018. Rep. by its Senior Manager

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…… Appellant

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And

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M/s. Coromandel Indag Products India Limited. Previously at : 62, Spur Tank Road. Chetput , Chennai – 600 031.

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Now at : No. 5A, Ram Mansions, 5^th Floor, No.381, Pantheon Road, Egmore, Chennai – 600 008.

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IA 284/2020 in AIR 84/2020

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Mr. S. James Fredrick, Previously at : 11/12, Harleys Road, Kilpauk, Chennai – 600 010. Now at : No.5/42, Maruthai Apartments, Harrington Road, Chetpet, Chennai – 600 009. 3. Mr. Arun R. Fredrick, No.11/14 Harleys Road, Kilpauk, Chennai – 600 010.

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M/s. Indag Finance and Guarantee Company Ltd. Previously at 62, Spur Tank Road, Chetput, Chennai – 600 031. Now at : No. 5A, Ram Mansions, 5^th Floor, No.381 Pantheon Road, Egmore, Chennai – 600 008. … . Respondents. For Appellant : Mr. K. S. V. Prasad For R1 & 3 : Ms. A. Kundavai For R2 : Mr. K. V. Babu

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IA 284/2020 in AIR 84/2020

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ORDER

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This Application is filed to condone delay of 424 days

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in preferring the Appeal against Order dated 13.05.2019 in MA 24/2008 in OA 17/1996 on the file of DRT-I, Chennai.

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Senior Manager, ARM Branch of Canara Bank, filed the Affidavit in support of Petition, and paras 1 to 14 are in respect of filing of OA and subsequent proceedings in it and challenge of certain proceedings is to Hon’ble Supreme Court level. Only paras 15 to 21, are concerned with delay in filing the Appeal.

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According to Appellant Bank, their Counsel drafted

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the grounds of Appeal, mailed them to Bank for vetting of facts, but it could not be vetted instantly, as months of June and July are being months of transfers, attention could not be paid to it; thereafter, Bank Officers were asking their Counsel to file the Appeal, but he could not do so, for the reasons stated in paras 16 to 20 of the Affidavit.

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IA 284/2020 in AIR 84/2020

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According to Appellant Bank, the Officer, who had been handling the case had returned back to the Branch and pursued it with their Counsel, and after the improvement of his Counsel’s health, the grounds of Appeal was finalized, and papers were made ready, and in the process, delay of 424 days has occurred in preferring the Appeal.

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Counter Affidavit of Respondents is filed opposing Application denying the Affidavit averments, and specifically contending that reasons stated in paras 15, 16, 17, 18 and 19 of Affidavit filed in support of Application, are not sufficient reasons to condone delay. It is further contended that Appellant Bank has got, established legal department looking after all the legal cases, and they have got plenty of Lawyers to defend their interest in Courts, and they have got various proceedings in all Tribunals and also before Hon’ble High Court and Hon’ble Supreme Court of India. It is further contended that Appellant Bank is fully aware of Orders passed in MA 24/2008 in OA 17/1996, and reasons that their Counsel did not timely

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IA 284/2020 in AIR 84/2020

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taken steps, which resulted in delay in filing the Appeal, is not at all convincing. It is further contended that for certain personal reasons of Advocate as to why he could not file an Appeal, is not a ground, when Appellant Bank has got many other Panel Advocates, and therefore, those reasons cannot be accepted for condoning delay. It is further contended that Appellant’s Counsel ought to have handed over the papers to Bank before March, 2020, when he was advised to remain at home due to COVID Pandemic. It is further contended that Application is devoid of merits and is liable to be dismissed.

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Heard both sides.

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Advocate for Appellant Bank and Advocates for Respondents reiterated respective pleadings of their parties during the course of their arguments.

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IA 284/2020 in AIR 84/2020

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Main reasons assigned for delay of 424 days can be divided into two parts; first part is prior to COVID-19 pandemic, and second part is after COVID-19 pandemic. From date of receipt of Order to date of filing Appeal, if the period is divided into two parts, roughly 224 days will fall under first category i.e., prior to COVID-19 pandemic, and around 200 days would fall under the second category, i.e. after COVID-19 pandemic. If there is sufficient cause for first 224 days delay, then, the later part can be safely ignored, in view of pandemic situation and Order of Hon’ble Supreme Court in respect of limitation. So, it has

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to be seen as to what is offered for first part delay.

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As already referred to above, paras 15 to 21 of Affidavit, deals with delay, and out of these paras, paras 15 to 19, are in respect of first part of delay. For better understanding and appreciation, it may be necessary to extract all these paras, which are as follows:-

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IA 284/2020 in AIR 84/2020

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“15. Our counsel drafted the Grounds of Appeal and mailed them to our bank, for vetting of facts. But since the matter was to a pertaining compromise settlement pertaining to 2005 and in view of the multiplicity of litigations, the same could not be vetted instantly. The months, June and July, being the months of transfers, undivided attentions could not be paid to the Appeal, from a decades old case. However, thereafter, our bank Officers were asking our counsel to file the Appeal. But, he could not, due to some debilitating reasons, stated infra.

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16. As our collective misfortune would have it, our Counsel had a strange problem of leakage from the roof of his main Room in his office in Thambu Chetty Street and all the files, books and almirahs had to be shifted, with the dumping of case files and law books, pell-mell, in one corner of another small room. A repair work was done by the landlord, but once again there was a leakage. The landlord wanted the main office room to be vacated fully for carrying out the repairs in June, 2019.

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17. Frustrated by it and after searching for an office space in that neighborhood, our Counsel

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IA 284/2020 in AIR 84/2020

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requested his another client, LIC of India to allot a room for him in any of its premises, which after several months, they had done and executed a Lease Deed in September, 2019. But the room so allotted in the Esplanade Road, had no power supply and needed repairs, too. They were all attended to, by our counsel and LIC, by middle of January 2020 and all the files and law books/journals, were taken there, all jumbled up. Thereafter, the process of segregation of; pending and disposed files and thereafter the court wise, was done, which took a considerable time, due to another reasons, which followed this shifting.

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18. His second son’s wedding had been fixed on 19.01.2020 at Dayalbagh, Agra in UP. In connection with that, from the 1^st week of December, 2019, our Counsel had to go about, visiting and inviting friends and relatives, for the Wedding and attending Courts only for final disposals of those cases which could not be adjourned.

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19. The family members of our Counsel being followers of Radhasoami Satsang, as per the rules of this 200 years old faith, the members of his

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IA 284/2020 in AIR 84/2020

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family had to be present Ten days in advance in Dayal Bagh, Agra, UP, and do Seva/Service in its fields. The marriage took place in the open agricultural fields at 6 am., on 19.01.2020, in the Holy presence of their Guru, who was, a Professor of Engineering, the Dean of the IIT, New Delhi and later, Vice Chancellor of Dayabagh University. Even after his son’s marriage and return to Chennai, our counsel could not attend his office or courts in the 4^th week of January, and February, 2020, as he had been affected by severe cold and cough, and result of working in the agricultural fields of Dayalbagh at 4. p.m., in the morning, in the fog and cold, with temperatures low at 4 or 5 degrees Celsius, to do seva for a week.

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20……………..”

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From a reading of above paras, according to Appellant Bank, its Counsel had a strange problem of leakage of roof in his Office, due which a repair work was undertaken and Office was vacated and shifted to another Office, and it took time for segregation of pending and disposed of files Court-wise, after shifting. According to Appellant Bank

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IA 284/2020 in AIR 84/2020

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their Advocate’s second son’s Wedding was fixed at Dayalbagh, Agra in UP, and in that connection, from 1^st week of December, 2019, its Counsel was busy in inviting friends and relatives, and attending only for final hearing cases, which could not be adjourned. According to Appellant Bank, its Counsel and his family members are followers of Radhasoamy Satsang, and as per rules, Advocate and his family members are expected to be present at Dayal Bagh, Agra, UP and do seva in its fields, and even after their return to Chennai after marriage, its Counsel could not attend his Office in the 4^th week of January and entire February-2020, due to cough and cold.

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As already referred to above, the Affidavit is sworn in by Senior Manager of ARM Branch, Canara Bank, but if we read above referred paras 15 to 19 of Affidavit, it appears as if Bank’s Advocate is giving Affidavit, otherwise the facts that are narrated has to be understood as if Senior Manager of Bank is a family member of Advocate and associated with Advocate looking after his Office shifting

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IA 284/2020 in AIR 84/2020

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etc., and marriage of Advocate’s second son. If Bank Manager has stated that these facts are disclosed by his Advocate when enquired as to why Appeal is not filed, and sworn to that effect, one can understand that the Appeal could not be filed for those reasons, but, the sworn Affidavit shows as if Bank Manager is in personal knowledge of all these facts, and as if he is a family member of Bank’s Advocate, because he referred to about rules of Radhasoami Satsang, for which, his Advocate and his family are members of it. One can understand if Bank Manager is also a member of Satsang, and as such, he is aware of those rules, but the Affidavit is not in those lines.

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Advocate for Appellant Bank reiterated the very same reasons at the time of arguments, and contended that, a lenient view has to be taken in condoning delay, and to support his arguments, judgements of Hon’ble Supreme Court in the cases of i) State of Nagaland Vs. Lipok AO and Ors., reported in ( 2005) 3 SCC 752, ii) Market Committee, Hodal Vs. Krishan Murari & Ors., reported

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IA 284/2020 in AIR 84/2020

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in CDJ 1995 SC 144, iii) State of Haryana Vs. Chandra Mani and Ors ., reported in (1996) 3 SCC 132, iv) Collector, Land Acquisition Vs. Mst. Katiji & Ors., reported in CDJ 1987 SC 166 and v) N. Balakrishnan Vs. M. Krishnamurthy reported in CDJ 1998 SC 692 judgments of Hon’ble High Court of Madras in the case of i) P. K. Ramakrishnan Vs. The Tamil Nadu Electricity Board, reported in CDJ 1991 MHC 717 and ii) D. Muralidharan Vs. Chinnappan (died) reported in (2007) 4 MLJ 635; judgment of Hon’ble High Court of Assam in the case of Upendra Kumar Debnath Vs. State of Tripura reported in CDJ 2004 Assam HC 079 and judgement of Ho’ble High Court of Delhi in the case of Lalith Kumar

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Bhargava Vs. Shri Devender Kumar Bhargava reported in 2000 IIAD Delhi 219 , are cited, for the proposition length of delay is not relevant, but the sufficiency of cause and public interest is material; for the proposition that sufficient cause of delay should be considered with pragmatism and justice oriented manner, and also for the

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IA 284/2020 in AIR 84/2020

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proposition that, due to negligence of Advocate, parties should not suffer.

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Advocates for Respondents have not disputed the proposition laid down in above referred decisions, but contended that those propositions are not applicable here. He submitted, if their Lawyer did not take timely steps, which resulted in causing delay, that cannot be regarded as sufficient cause, which is the dictum of Hon’ble Supreme Court in Estate Officer, Haryana Urban

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Development Authority and Anr. Vs. Gopi Chand

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Atreja , reported in (2019) 4 SCC 612 .

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I have perused all the above referred decisions; in CDJ 1998 SC 692 decision, it is held, due to Advocate’s mistake and representation, party could not notice progress of case, which resulted in delay, was considered as sufficient cause; in CDJ 1991 MHC 717 decision , where Advocate has not intimated date, which resulted in

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delay, is also considered as sufficient cause; in CDJ 1995

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IA 284/2020 in AIR 84/2020

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SC 144 decision, where the concerned file was sent to Central Agency instead of sending it to State Agency, which caused delay, is also considered as sufficient cause; in (1996) 3 SCC 132 decision , where delay in taking decision by officials in preferring the Appeal was considered as sufficient cause; in CDJ 1987 SC 166 decision, bureaucratic methodology in note making system, which caused delay in filing the Appeal, is also considered as sufficient cause. But, in the case on hand, as rightly pointed out by Learned Advocate for Respondents, facts of this case are no way nearer to fact of these decisions. Advocate for Respondents submitted that facts of this case attract facts of Hon’ble Supreme Court case in (2019) 4 SCC 612 , where Hon’ble Supreme Court held that, if Lawyer did not take timely steps, it cannot be regarded as sufficient cause. In fact, para 12 of said judgement, which is relevant, is as follows:-

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IA 284/2020 in AIR 84/2020

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“ The appellant HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well established Legal Department to look after the legal cases filed by HUDA and against HUDA in various Courts. They have a panel of lawyers to defend their interest in Courts. It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects. If, according to the appellants HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/re-filing, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.”

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So, from the decision relied on by Learned Advocate for Respondents, which is a latest decision of Hon’ble Supreme Court, the facts of which squarely nearer to the facts of

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case on hand, because here also, the Appeal could not be

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filed as Counsel for Appellant Bank has not taken timely

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IA 284/2020 in AIR 84/2020

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steps due to his personal reasons, and according to above referred judgement of Hon’ble Supreme Court, it cannot be regarded as sufficient cause. Here in this case also, as rightly objected by Counsel for Respondents, Appellant Bank has got plenty of Lawyers as Panel Advocates, and when the Affidavit of Bank Manager clearly shows that their Advocate drafted the grounds of Appeal and mailed it to their Bank, nothing prevented Bank from finalizing those grounds and getting the Appeal filed through some other Panel Advocate, because for filing an Appeal, there is no need of original documents, only requirement is certified copy of Order, which can be obtained through their Panel Advocates.

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During the course of arguments, Learned Advocate for 2^nd Respondent submitted that controversy is already settled, and nothing survives, and Advocate for Respondent Nos.1, 3 and 4 submitted that present Appeal is nothing but abuse of process of law. They also submitted that in

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IA 284/2020 in AIR 84/2020

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OA, a Memorandum of Compromise was filed, and in terms of which, a consent Decree was passed on 30.11.2005, and thereafter, when DRAT passed Orders in MA 32/2007 extending time of six months, Bank filed Writ Petition before Hon’ble High Court, which was dismissed and Bank carried the matter to Hon’ble Supreme Court, which was also dismissed confirming the extension of time, therefore, filing Application MA 24/2008 for deletion of certain words from Compromise Decree, which Appellant contended that they are added by Learned Presiding Officer, is nothing but abuse of process of law, but I am not going into that aspect, because, it touches the merits, and in delay Petition, primary consideration is whether cause assigned is sufficient cause or not.

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As already referred to above, in view of judgement of Hon’ble Supreme Court, cause assigned by Appellant Bank, cannot be regarded as sufficient cause, therefore, all the decisions relied on by Advocate for Appellant Bank are

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IA 284/2020 in AIR 84/2020

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in no way helpful, particularly when the latest Hon’ble Supreme Court decision, which is direct on the point in

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issue, objection of Respondents has to be upheld.

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For these reasons, I am of the considered view that when Appellant Bank failed to show sufficient cause for the first part, even if second part has sufficient cause namely COVID-19 pandemic, the same cannot come to rescue of Appellant Bank, and thereby, Appellant Bank is not entitled for the relief claimed.

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Accordingly, IA 284/2020 is dismissed with no order as to costs. Consequently, Appeal AIR 84/2020 is rejected. All pending IAs, if any, stand closed.

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[Dictated to Athistamani, PS transcribed by her, corrected, signed and pronounced by me in open court, this 19^th of October, 2022]

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Sd/- [ Justice S. Ravi Kumar ] CHAIRPERSON

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Canara Bank v. coromandel indag product india limted

Case brief

What is this about?

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Canara Bank v. coromandel indag product india limted

Case brief

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