ORDER
K. Gnanaprakasam, J. (Chairperson)
1. Both these Appeals have been filed by the Canara Bank as against the Common Order dated 11.1.2005 passed by the DRT-II, Chennai, in MA-58/2004 & MA-60/2004.
2. Heard the learned Advocates for the applicant Bank and the respondents.
3. The respondents in these appeals were set ex parte in TA-31/2001, and on their applications to set aside the ex parse Order, there was some delay in filing the petition and the said delay was excused on payment of costs. Consequently, the applications filed by the respondents to set aside the ex parte order was allowed on condition that they have to pay a sum of Rs. 1 lakh by each petitioner directly to the applicant Bank. Aggrieved by the said order only, the Bank has preferred these appeals. The learned Advocate for the appellant Bank would contend that the reasons shown are not sufficient to set aside the ex parte Order and without considering the same, the DRT has allowed the applications. It is further contended that originally the appellant Bank filed a suit in the year 1991, and the same was transferred to DRT in the year 2001, and it is a long pending matter and the respondents have wantonly remained ex parte and, therefore, the amount ordered by the DRT directing the respondents to pay Rs. 1 lakh in each petition is grossly inadequate and, therefore, the Order passed by the DRT is not proper.
4. On the contrary, the learned Advocate for the respondents would contend that the respondents have not been served with summons or notice. It is further stated that they were earlier residing at No. 12, Madhu Roy Bye Lane, Calcutta-6, upto March, 1985 and thereafter, they left that place and shifted to the present address given in their respective Affidavits, and in view of the shifting of residence they have not received any notice or summons of the proceedings. Subsequently, they came to know about the proceedings of the application only when an Attachment Notice which was put up on the wall of the property of the last known address and the well wishers and erstwhile neighbours who were residing near the property had informed them and thereafter, filed the application to set aside tine ex parte Order. Of course, there was a delay and the application filed to condone the delay was allowed by the Tribunal on payment of costs. Consequently, the application to set aside the ex parte order was also allowed directing the respondents herein to pay a sum of Rs. 1 lakh by each petitioner and the same was also complied with. The respondents state that when once the condonation of delay was allowed, the very same reasons are good enough to allow the ex parte order also. The appellant Bank has not chosen to question the Order of condonation of delay, which was passed on 19.10.2004 and, therefore, the appeals are not maintainable.
5. On going through the material papers and the order passed by the Tribunal, it is made out that the applications filed by the respondents to condone the delay was allowed by an Order dated 19.10.2004, with a condition to pay a sum of Rs. 50,000/- by each petitioner and the same was complied with by the respondents. The main grievance of the appellant Bank is that though the delay was condoned and the application filed by the respondents to set aside the ex parte Order was also allowed, it was allowed on condition that each of the appellant should deposit a sum of Rs. 1 lakh which is very meagre as the respondents are liable to pay in crores. At this juncture, the learned Advocate for the respondents has filed a letter of compromise entered into between the appellant Bank and some other defendants and submitted, the appellants are precluded from prosecuting the case as against the other respondents as no leave was sought from the Court to have a partial compromise. In any event, the learned Advocate for the respondents appeals to this Court that the Tribunal had taken into consideration the overall aspects of the matter and allowed the petition filed by the respondents at indiscretion and the said discretion was exercised judiciously and in such a case; the Appellate Forum would not normally interfere. It is further represented that the procedure under the RDDB&FI Act, 1993, is mainly oriented upon the natural justice and natural justice requires that the respondents must be given an opportunity to defend their case.
6. It is true that the respondents remained ex parte and they have not given their change of address to the appellant Bank. It is always obligant on the part of the person who shifts his residence to inform the change of address, and the same was not done in this case. But, however, when the respondents came to know of the proceedings, they have filed the necessary application to set aside the ex parte Order and also filed an application to condone the delay by way of abundant caution. Across the bar, both the learned Advocates for the appellant Bank and the respondents admit that at the time when the respondents have filed the application to set aside the ex parte Order, the OA proceedings have not reached the finality and it was pending. As such, strictly speaking, there was no decree at all. But, however, the respondents have filed an application to condone the delay by way of abundant caution and that was allowed by the Tribunal. Consequently, the applications to set aside the ex parte order were also allowed with certain directions. As there was an observation in the order passed by the DRT that the respondents have not filed the reply statement though the matter is pending for a long time and, this Appellate Tribunal directed the respondents to file their reply statement before this Appellate Forum. Accordingly, they have also filed their reply statement today.
7. On going through reply statement filed by the respondents, wherein they have stated that they are not liable to pay any amount as they have not borrowed any money and the alleged claim of the Bank in any event is against the unregistered partnership firm, which is hopelessly barred by limitation. They have also raised several pleas holding that they are not liable to pay any amount to the Bank. These are all the matters which require consideration by the DRT for which the respondents should be given an opportunity to take the trial before the DRT.
8. The learned Advocate for the respondents has produced certain authorities to sustain his argument that the Order passed against them was only an ex parte order and any manner of conditions that would be imposed against them should not be too onerous as it would cause much inconvenience. In the case of Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors., , the Hon’ble Supreme Court has held:
“An application under Order 9 Rule 7, CPC is required to be made only if the defendant wishes the proceedings to be reflected back and reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi parte. While exercising power of putting the defendant on terms under Rule 7 the Court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been in if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the Court may not in the garb of exercising power of playing upon terms make an order which probably the Court may not have made in the suit itself.
The purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation.”
9. This observation of the Supreme Court is squarely applicable to the case on hand. It is being often held by the Supreme Court that the expression “Sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and general delays be condoned in the interest of justice whether gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. In N. Balakrishnan v. M. Krishnamurthy, , the Supreme Court held that, “Acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay. However, in such a case, the Court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly”. Para 9 at Page 127 in the said Judgment was accepted and quoted by the Supreme Court in the case of M.K. Prasad v. P. Arumugam, , which states :
“It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court.”
10. In almost all the decisions rendered by the Apex Court, pendulum swings towards the trend to condone the delay, provided there is no mala fide or deliberate delay as a dilatory tactic. These are the ground and other grounds to condone the delay. In our case on hand, also I am not able to come across any mala fide or deliberate delay on the part of the respondents in not having participated in the proceedings. Further, the delay has been condoned by the Tribunal, which is not challenged. Only allowing of the application to set aside the ex parte Order is under challenge mainly on the ground that the direction by the DRT to deposit only Rs. 1 lakh in each petition appears to be very meagre and inadequate as the amount due is large. I am able to understand the anxiety of the appellant, but that is not the reason to throw the respondents out of Court. Only to prevent further delay, this Tribunal directed the respondents to file reply statement and they have also complied with the same and without prejudice to the rights of either parties, both of them must be given an opportunity to meet their case. As the Act itself contemplates rendition of natural justice and that the applications to condone the delay have already been allowed and a further condition was also imposed to set aside the ex parte Order. I do not think that the DRT has committed any error, which requires the interference by this Tribunal. As no ground has been made out to interfere with the Orders passed by the Tribunal, Appeals deserve to be dismissed, accordingly it is dismissed.
11. In the result, both the appeals arc dismissed. No costs.
12. As the learned Advocate for the appellant Bank expressed his anguish that the matters have been pending for a long time, the DRT is hereby directed to dispose of the OA as expeditiously as possible.