ORDER
K.S. Kumaran, J. (Chairman)
1. Rejoinder to the reply filed by the respondents 1, 2 and 4 today in Court is taken or record. Copy furnished to the Counsel opposite.
2. Notice to 5th respondent was also taken already by publication in the newspaper and none has put in appearance on behalf of 5th respondent.
3. Heard arguments of both the sides on the question of condoning the delay in filing the appeal against the final order passed by the Debts Recovery Tribunal, Jaipur in O. A. No. 506/ 97 on 17.10.2001. The appellant is the State Bank of Bikaner and Jaipur and has filed Misc. Application No. 382/2001 under Section 20(4) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the Act’) for condoning the delay.
4. During the course of the arguments, the learned Counsel for the applicant/appellant stated that the copy of the impugned order was not served upon the applicant/appellant but the applicant/appellant got a copy of the order on 27.10.2001 when the defendants in the suit wrote a letter to the applicant-Bank enclosing the said copy. The learned Counsel for the applicant also contended that when the Counsel found the copy sent to the Counsel for drafting the appeal was not certified copy, the Bank was asked to produce a certified copy. According to the learned Counsel for the applicant/appellant, it was thereafter, on 5.12.2001, an application for certified copy was made, and a copy was obtained on 11.12.2001.
5. But the allegation in the application is that the applicant/appellant Bank was granted only a decree for the principal amount and not for future interest and, therefore, the applicant/appellant Bank decided to file an appeal against the said order dated 17.10.2001 and accordingly sent the file to its Advocate for drafting the appeal. The further allegation is that while drafting the appeal, the learned Counsel for the applicant/appellant noticed that the copy of the order which the Counsel got was only a photocopy and not a certified copy, and the Counsel asked the appellant to send the certified copy. It has further been averred in the application that thereafter the appellant Bank searched for the certified copy, but it appeared that the same was misplaced and was not traceable and so the appellant applied for a fresh certified copy on 5.12.2001 and got the same on 11.12.2002. The applicant/appellant has stated that, therefore, there occurred a delay of 25 days in filing the appeal which, it prays, be condoned.
6. Therefore, as rightly pointed out by the learned Counsel for the respondent, I find that the arguments run counter to the averments found in the application. The averments found in the application clearly show that a copy of the impugned order must have been served upon the applicant Bank, and the contention that no copy was served on the applicant-Bank is not correct, otherwise, the applicant-Bank would not have stated in the application that the copy of the order was misplaced and was not traceable. Strangely enough, the applicant has not also stated in the application the actual date on which the copy of the order was received. The learned Counsel for the applicant/appellant has also not been able to point out the actual date of receipt of the copy of the impugned order. It is necessary for the purpose of not only finding out the bona fides of the applicant/appellant but also the number of days of delay that has occurred in filing the appeal.
7. Having heard and considered the arguments of both sides, I am of the view that there is no reason for condoning the delay at all,
8. If we take into consideration the facts that the applicant/appellant must have been served with a copy of the impugned order, and that the applicant has not even disclosed the actual date on which it was served on the applicant, it will be clear that the application made on 5.12.2001 for a fresh copy cannot give rise to a cause of action for the applicant or a fresh start of the period of limitation. The appeal should have been filed within 45 days from the date of service of the copy of the impugned order of the Tribunal. As pointed out already, the applicant/appellant has not chosen to give even the date on which the applicant/appellant was actually served with a copy. There is no satisfactory explanation as to why the appeal was not filed in time from that date. The reasons for the delay mentioned in the application are quite different from those mentioned at the time of the arguments. Even in the rejoinder filed by the applicant, it has been stated that the papers were sent by the Assistant General Manager for the preparation of the appeal only on 20.11.2001, i.e., more than a month from the date of the order.
9. In these circumstances, when there is no just or sufficient reason for not being able to file the appeal in time, I find that the application deserves to be dismissed.
Accordingly, this application is dismissed.
Unregistered Appeal
Inasmuch as the application for condonation of delay is dismissed, the unregistered Appeal is rejected.