The Tribunal refused to condone a delay of 1251 days in setting aside a dismissal for default order, holding that the applicant's reliance on his counsel was not a sufficient excuse and that no finding against the counsel had been obtained.
Application seeking condonation of delay and the Special Application are dismissed.
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DEBTS RECOVERY TRIBUNAL-2, CHANDIGARH
ITEM NO.45
MA/27/2023 SHREE BALAJI CONTRACTOR AND SUPPLIERS Vs STATE BANK OF INDIA
13.10.2023
Present: None
Application under Section 5 of the Limitation Act, 1963, has been filed seeking condonation of delay of 1251 days in filing the MA for recalling order dated 16.05.2019 vide which the SA was dismissed for default. Reply to the IA was filed. Replication to the reply was also filed.
I have heard Sh. Arman Goyal proxy counsel for Sh. Nandan Jindal Advocate for the applicant and Ms Kirti Sandhu, Manager Law for the respondent bank and also gone through the record carefully.
Order dated 16.05.2019 being relevant is reproduced below for
facilitative reference:
“ No one has appeared for the applicant today.
No one was present even on the previous date of hearing also. It seems that applicant is not interested in pursuing this matter. Therefore, this SA is dismissed in default. The file be consigned to record room. Copy of the order be supplied to parties as per rule.”
It was argued that the SA was filed in the Year 2011 against State Bank of Patiala, now State Bank of India and Sh. Ashok Paul Jagga Advocate was engaged by the applicant; that the case titled ‘Kuldeep Floor Mill Vs State Bank of Patiala’, which was also pending since 2010, was also given to the said Advocate; that there were other cases in the Hon’ble High Court in which Sh. Alok Jagga s/o Sh. Ashok Paul Jagga was contesting; that the applicant had visited the Office of Sh. Ashok Paul Jagga and Sh. Alok Jagga Advocates and several times, the Clerk had given the dates telling that both the cases were listed on the same date; that one day, in May 2022, the applicant inquired about other case online and came to know that Sh. Alok Jagga Advocate was not appearing in other case and another Advocate was appearing in that case; that thereafter, the applicant and his son visited the Office of Sh. Alok Jagga Advocate at Chandigarh and inquired about SA No. RR2014/2011 titled ‘Shree Balaji Contractor and Suppliers Vs SBOP now SBOI’ i.e. the present case; that the Clerk of the learned counsel replied that the SA was dismissed for default in the Year 2019 due to nonappearance; that when the applicant asked Sh. Alok Jagga Advocate, he
MA/27/2023 SHREE BALAJI CONTRACTOR AND SUPPLIERS Vs STATE BANK OF INDIA 2
replied that he and his junior Advocate, Sh. Rajan Puri had no liability and responsibility about the case; that he further stated that Sh. Rajan Puri Advocate had appeared in the case of the applicant and he took dates and told him about the dates; that thereafter, the applicant got the order of this Tribunal and he was astonished to see that on 16.05.2019 the SA was dismissed for default for non-appearance of the counsel to consecutive dates but the said Advocate did not give information about dismissal of the case; that when the applicant asked about the fate of his case, Sh. Aalok Jagga Advocate stated that the case was adjourned whereas the above case was dismissed due to fault of Sh. Ashok Paul Jagga and Sh. Aalok Jagga Advocates; that on knowing about the fate of the case, the applicant also filed a complaint against the said Advocates before the Bar Council of the Punjab and Haryana in which the comments of the advocates were called by the Bar Council and the client could not be made to suffer due to the errors and misdeeds of the counsel.
On the other hand, it was argued that there was no plausible explanation for the delay of 1251 days. It was further argued that complaint against the Advocates was filed in September, 2022 notwithstanding the fact that the applicant came to know about the order of dismissal in May 2022. In the considered opinion of this Tribunal, making a complaint against an Advocate by a litigant is not a child’s play.
In the facts and circumstances of the case, this Tribunal is of the considered opinion that there appears hardly any valid and sufficient ground for condonation of huge delay in this case. This Tribunal is alive to the realities that it is very difficult to disbelieve a counsel in the first instance and then to proceed against him especially in view of the trust between the counsel and the litigant and also the resources at the disposal of a litigant in comparison to that of the counsel and in the face of the status of the counsel. Making a complaint against a counsel and seeking of the comments by the Bar Council is not ‘be all and end all’ of everything for facilitating the condonation of huge delay in this case. Had there been any finding rendered by the Bar Council against the Advocate/Advocates, that could be taken into account but no such finding has been brought to the notice of this Tribunal. It is also a fact that in view of pandemic Covid-19, for a considerable duration, the working of the Courts/Tribunals was brought to a grinding halt.
The SA was filed on 21.04.2011 and the applicant could not be expected to be wholly dependent upon the information given by the counsel. He could check the status of the case on the website of the Tribunal. It is not the case of an illiterate agriculturist from the countryside but that of a
MA/27/2023 SHREE BALAJI CONTRACTOR AND SUPPLIERS Vs STATE BANK OF INDIA 3
contractor who is supposed to be alert about his rights and the delay in the disposal of his lis . In the totality of the facts and circumstances of the case, there is hardly any sufficient reason for condonation of the huge delay in this case. Consequently, the application in question seeking condonation of delay is dismissed and with this goes the MA. File be consigned to the record room after due compliance.
Pronounced in the open Tribunal
(M.M. Dhonchak) Presiding Officer DRT-2, Chandigarh
2 issues framed by the court
Whether the delay of 1251 days in filing the application to recall the order dismissing the Special Application for default can be condoned under Section 5 of the Limitation Act, 1963.
Whether the complaint filed against the advocates by the applicant constitutes sufficient ground for condoning the significant delay.
1 provisions across 1 enactments
Shree Balaji Contractor and Suppliers
State Bank of India
M.M. Dhonchak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
