Judgment:
$~SB-1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Date of Judgement:
15. h February, 2019 RFA.(OS).32/2002 NEXIM EXPORTS PVT. LTD. AND ANR. ..... Appellant Through Mr. Rakesh Tiku, Senior Advocate with Ms. Ananya Bhattacharya, Advocate. versus B.B.PATEL ..... Respondent CORAM: Through Mr. Hemant Gupta, Ms. Monica Anand & Mr. Alok Sharma, Advocates. HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MR. JUSTICE SUNIL GAUR G.S. SISTANI, J.
(ORAL) Review Pet. 265/2015 & CM.APPL88462015(delay) 1. By way of this review petition, the petitioner/appellant seeks review of the order dated 07.08.2014 by which an application being CM88032014 filed in the present appeal being RFA (OS) 32/2002 seeking permission to withdraw the appeal was allowed. The review petition is accompanied with an application being CM APPL88462015 seeking condonation of 245 days delay in filing the review petition.
2. The necessary facts required to be noticed for disposal of this review petition and CM APPL88462015 are that the appellant herein had challenged the judgment and decree dated 20.09.2002 passed in a suit filed by the respondent under Order XXXVII of the Civil Procedure RFA(OS) 32/2002 Page 1 of 8 Code (in short ‘CPC’). It may also be noticed that during the pendency of the appeal; as is evident upon reading of the impugned order that the appellant was directed to deposit a sum of Rs.33,10,036/-, which was in the form of a Fixed Deposit Receipt (FDR) having maturity value of Rs.46,47,590/- as on 18.01.2012. Subsequently, the FDR was encashed and a demand draft was deposited in favour of UCO Bank, Delhi High Court.
3. Mr. Tiku, learned Senior Counsel, appearing for the applicant submits that since the Director of the appellant was facing litigation and there was an apprehension of his being arrested in another matter, as advised, he sought leave to withdraw the appeal and release of the amount deposited in this Court which would have been used by him in satisfying the demand in the other matter where he was facing threat of arrest. Counsel further submits that although while allowing the application to withdraw the appeal, the second prayer for release of the amount was allowed with the condition that this amount was allowed to be released in case the respondent herein did not file an execution petition as the earlier execution petition filed stood dismissed in default.
4. The review petition is accompanied by an application being CM APPL88462015 under Section 5 of Limitation Act seeking condonation of 245 days delay. It is contended that the applicant was suffering from cancer and thus, he could not file the application within the time allowed.
5. Both these review petition and application under Section 5 of the Limitation Act are opposed by learned counsel for the respondent, RFA(OS) 32/2002 Page 2 of 8 who submits that there is no sufficient cause for condonation of delay or any ground is made out for review of the order dated 07.08.2014 which was passed at the instance of the review petitioner. With respect to the prayer seeking condonation of delay, it is pointed out that the applicant was detected with Lymphoma blood cancer in January, 2015, whereas the order seeking review was passed much earlier on 07.08.2014. Even otherwise, the application so filed is not bonafide, a right has accrued in favour of the respondent which cannot be unsettled and the clock cannot be turned back. The respondent, who is 80 years of age, has still not been able to enjoy the fruits of the decree arising out of the judgment passed as far back as in the year 2002. He further submits that once the appeal has been withdrawn unilaterally and unconditionally, the present application seeking review of the order would not be maintainable as there is no apparent error on the face of the order.
6. Mr. Tiku contends that since the money was not returned to him, the basic ground in the application for withdrawal did not survive.
7. We have heard learned counsels for the parties. The review petitioner seeks condonation of 245 days delay in filing the review petition on the grounds as set out in paras 3 & 4 of the application.
8. It is a settled law that Courts must adopt a liberal approach while deciding an application seeking condonation of delay. It is also a settled law that while considering an application seeking condonation of delay, the court must be satisfied that the delay was on account of sufficient cause and the application is bonafide. Sufficient cause for delay and not period of delay is to be considered. While a short period RFA(OS) 32/2002 Page 3 of 8 of delay may not be condoned, on the other hand, a long period of delay may be condoned provided the applicant is able to show sufficient cause. (See P. K. Ramachandran vs. State of Kerala reported at (1997) 7 SCC556.
9. In the case of Ramlal & Others v. Rewa Coal Fields Ltd., reported at AIR1962SC36it has been held that the court must not lose track of the fact that while passing a decree a substantial right accrues in favour of the respondent and this right should not be disturbed lightly.
10. In the case of Balwant Singh Vs. Jagdish Singh, reported at 2010 (8) SCC685 while deciding an application under Order 22 Rule 9 of CPC and Section 5 of the Limitation Act, it was held as under: “25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it RFA(OS) 32/2002 Page 4 of 8 will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. (emphasis added) enunciated of 27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. ingredients of Bihar v. Kameshwar 28. In State Prasad Singh [(2000) 9 SCC94:
2000. SCC (L&S) 845]. this Court had taken a liberal approach for condoning the delay in cases of the Government to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.” 11. The question before us is whether the application seeking condonation of 245 days delay filed by the review petitioner is bonafide, was he prevented from filing the review petition due to sufficient cause or was RFA(OS) 32/2002 Page 5 of 8 the delay on account of inaction or negligence.
12. Delay of 245 days is sought to be condoned on the ground that the appellant became seriously ill since September, 2014 and was not able to attend to his day to day work. Thereafter, with each passing day, the condition of appellant no.2 deteriorated requiring urgent medical attention. He was admitted in hospital and had undergone many tests and finally in January, 2015, appellant no.2 became bedridden and was diagnosed with Lymphoma, which is a type of blood cancer. Further as per application, appellant no.2 is confined to bed and is undergoing chemotherapy and other treatment. The application further discloses that appellant no.2 is not in a position to attend to his day to day activities. He is legally qualified and has been doing most of the legal work himself, having an advocate on record for formal purposes only. The applicant has further submitted that the respondent did not file a fresh execution application and has not been pressing the decree execution in their favour. In short condonation of delay is sought on the ground that the appellant no.2 could not file the review petition on account of his medical condition. Post filing of this application, documents pertaining to the medical condition of appellant no.2 have been filed.
13. We have examined the application seeking condonation of delay and the documents which have been filed in support of the medical condition of appellant no.2. The first document is the CECT chest and whole abdomen. A discharge summary has been annexed, which shows admission of appellant no.2 on 20.05.2015 and date of discharge on the same day, after he was given chemotherapy. Another RFA(OS) 32/2002 Page 6 of 8 discharge summary has been placed on record showing date of admission on 06.04.2015 and date of discharge on the same day. Identical discharge summaries showing date of admission on 29.04.2015 and date of discharge on 30.04.2015, date of admission on 21.02.2015 and date of discharge on the same day and one admission on 27.01.2015 and date of discharge on 02.02.2015 have also been filed. It may be noted that the appellant has sought review of an order dated 07.08.2014. The first document in support of the medical condition of the appellant pertains to 27.04.2015. There is no explanation as to why the review petition was not filed between the period 07.08.2014 to 27.04.2015. It has been mentioned in the application that appellant no.2 became seriously ill in September, 2014 but there is not a single document in support of this averment. We also find that there is no document on record which would suggest that at any point of time, appellant no.2 was bedridden and was not in a position to instruct a counsel to file a review petition. Thus, in our view, the appellant has not been able to establish that he was prevented from filing the review petition due to sufficient cause. Further, we do not find any sufficient ground to condone the delay. The application is not bonafide. Accordingly, the same is dismissed.
14. We have examined the grounds seeking review of the order dated 07.08.2014. We find that during pendency of the appeal, an application seeking withdrawal of the appeal and release of the money so deposited was filed. The application for withdrawal clearly and unequivocally sought leave to withdraw the appeal. The reasons for withdrawal have also been noticed in the impugned order. The court RFA(OS) 32/2002 Page 7 of 8 did not pass any order for release of the amount but a conditional order was passed that in case no execution is filed, the amount would be released in favour of the appellant. Since the execution was filed, the amount was not released. Once having taken a categorical stand for withdrawal of the appeal, we see no reason to review the order and put the clock back considering the respondent, who is a senior citizen and stated to be 80 years of age is still fighting hard to recover the money, which was decreed in his favour as far back as in the year 2002. No ground is made out for review of the order dated 07.08.2014. The review petition is accordingly dismissed. G.S.SISTANI, J.
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