1. This Civil Revision Petition is filed under Section 115 of Civil Procedure Code (for short ‘CPC’) questioning the validity and legality of impugned order dated 26.04.2022 in I.A.No.1778 of 2021 in O.S.No.778 of 2013 on the file of the learned Chief Judge, City Civil Court at Hyderabad.
2. This application in I.A.No.1778 of 2021 was filed by the petitioner/plaintiff under Section 5 of Limitation Act to condone the delay of 915 days in filing an application to restore the Original Suit. The learned Chief Judge, City Civil Court, Hyderabad, on careful appreciation of the entire material available on record, dismissed this application holding that there are no bonafides in the petition and the same is liable to be dismissed. Feeling aggrieved by the order impugned dated 26.04.2022 this Civil Revision Petition is filed.
3. Heard learned counsel for the revision petitioner and the respondent. The submissions made on either side have received due consideration of this Court.
4. The admitted or undisputed facts of the case are that the revision petitioner is the plaintiff in O.S.No.778 of 2013, a suit filed for recovery of a sum of Rs.46,24,500/-. Before filing the suit, the plaintiff has filed a Company Petition for winding up of the company vide C.P.No.34 of 2011 on the file of this Court. All the original documents were filed in the said Company Petition. During pendency of the said Company Petition, the matter was transferred from High Court to National Company Law Tribunal (for short ‘NCLT’), Hyderabad. It is also an undisputed fact that on transfer of C.P.No.34 of 2011 to NCLT, Hyderabad it was rejected on 26.06.2020 and an appeal was preferred before the National Company Law Appellate Tribunal (for short ‘NCLAT’) challenging the rejection order dated 26.06.2020 but the same was also dismissed by Appellate Tribunal on 01.02.2021.
5. It is the case of the petitioner/plaintiff that at this juncture the petitioner/plaintiff made an enquiry and found that the Original Suit in O.S.No.778 of 2013, filed by the plaintiff, was dismissed for default on 03.08.2018 and this information was received by the petitioner on 30.06.2020 accordingly, the revision petitioner/plaintiff has filed I.A.No.1778 of 2021 before the learned Chief Judge, City Civil Court, Hyderabad to condone the delay of 915 days in filing an application to restore the Original Suit in O.S.No.778 of 2013 but the same was dismissed by the trial Court.
6. Whereas the specific case of the respondent/ defendant is that the revision petitioner/plaintiff has taken several adjournments from 12.04.2017 to 05.02.2018, finally on 03.08.2018 the suit was dismissed for default for nonprosecution. Though it is averred in the supporting affidavit that the learned counsel for the petitioner is responsible for non-representation, nothing is mentioned in the affidavit. Even otherwise the petitioner came to know about the dismissal of the suit on 30.06.2020 and the present application is filed on 24.02.2021, after lapse of seven months and twenty three days from the date of knowledge. The petitioner pleaded ignorance of the orders dated 03.08.2018 but during the relevant period the petitioner was pursuing the remedy before the NCLT or NCLAT and it is only after dismissal of the matter before NCLAT on 01.02.2021 the present petition is filed and there are no bonafides in the claim made by the petitioner.
7. Be it stated that the Original Suit is filed by the plaintiff for recovery of Rs.46,24,500/- including principle and interest. Besides filing the Original Suit the petitioner has also filed a Company Petition and it was transferred to NCLT, Hyderabad, thereafter it was rejected before the NCLT, appeal was preferred before the NCLAT and the same was dismissed, during the interregnum period the petitioner was only pursuing the remedy either before NCLT or NCLAT and he did not chose to pursue the Original Suit in O.S.No.778 of 2013 and all of a sudden, after dismissal of the appeal before the NCLAT, this application is filed to condone the delay of 915 days. As per the averments of the supporting affidavit, it is mentioned that the petitioner has come to know about the dismissal on 30.06.2020 but the application is filed only on 26.06.2021 that is almost after seven months twenty three days from the date of knowledge of the dismissal of the suit on 30.06.2020. In other words, the Original Suit in O.S.No.778 of 2013 was dismissed for default for non-prosecution on 03.08.2018 the petitioner has claimed knowledge of the said orders on 30.06.2020, he has filed the application in I.A.No.1778 of 2021 on 24.02.2021 after lapse of seven months and twenty three days from the date of knowledge to condone the delay of 915 days from 03.08.2018 onwards.
8. Before filing Original Suit, it appears, the plaintiff has also filed Company Petition vide C.P.No.34 of 2011 on the file of this Court, it was transferred to NCLT and was rejected on 26.02.2020 and thereafter, preferred an appeal before the NCLAT, which was dismissed on 01.02.2021.
9. I have carefully perused the averments of the supporting affidavit, filed by the petitioner. Except mentioning in paragraph Nos.11 and 14 stating that in view of pendency of the proceedings before the NCLT or NCLAT, the petitioner was not in a position to pursue the remedy in Original Suit in O.S.No.778 of 2013, nothing could be gathered. Thus, having lost the dispute before the NCLT and NCLAT now the petitioner/plaintiff has filed the application to condone the delay of 915 days in filing an application to set aside the dismissal order.
10. The learned Judge of the trial Court has categorically held that there are no bonafides in the prayer made and that there is inordinate delay from the date of knowledge dated 30.06.2020 in filing the application, which was filed on 24.02.2021.
11. In this context, I may refer to the principles laid down by the Hon’ble Supreme Court in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others 2013(12) SCC 649 wherein the Apex Court while interpreting the provisions of Section 5 of the Limitation Act regarding condonation of delay, summarised the principles as follows:-
(i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts is to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
12. Thus the law consistently laid down by the Hon’ble Supreme Court says that the word ‘sufficient cause’ must be construed liberally to meet the ends of justice without adopting pedantic approach. But, exception to this test to be applied is whether the petitioner has made out sufficient cause or not The expression ‘sufficient cause’ cannot be liberally interpreted if negligence, in-action or lack of bonafides is attributed to the party. Thus, the Court has to examine the circumstances and if the Court is satisfied that the cause shown by the petitioner is beyond his control, such cause is to be accepted as ‘sufficient cause’ which prevented the petitioner from appearing before the Court within limitation. If the Court finds that the petitioner is negligent and deliberately protracting the proceedings for one reason or the other such a person is disentitled to claim the benefit of Section 5 of the Limitation Act.
13. Though limitation may harshly effect the rights of a party, it has to be applied with all its rigour when prescribed by the statute. In the instant case due to the inaction on the part of the petitioner for more than two and half years, a valuable right is accrued in favour of the respondent, which cannot be easily disturbed. After filing the Original Suit the petitioner/plaintiff was pursuing the remedy before the NCLT and NCLAT in respect of the same subject matter and having lost the proceedings before the NCLT and NCLAT now the present application was filed to condone the delay in filing an application to set aside the dismissal order in the Original Suit.
14. Though this application is filed to condone the delay of 915 days, as per the averments of the supporting affidavit, the petitioner has come to know about the dismissal order dated 03.08.2018 on 30.06.2020 but the application was filed on 24.02.2021 after lapse of almost seven months and twenty three days from the date of knowledge, no plausible explanation is offered by the petitioner on this aspect. Such inordinate delay cannot be condoned in the absence of sufficient cause made out by the petitioner. It appears, the petitioner is designedly trying to protract the proceedings for sufficient length of time, deliberately failed to file the application for restoration of the Original Suit during pendency of the proceedings before NCLT and NCLAT and after dismissal of the appeal before the NCLAT, to revive the proceedings before the trial Court, he has filed this application to condone the delay of 915 days only stating that his counsel could not concentrate on the pending Original Suit in view of the proceedings before the NCLT or NCLAT. Such explanation in the above factual matrix does not inspire any confidence and it reflects lack of bonafides imputable on the part of the petitioners. Therefore, the concept of liberal approach cannot be allowed a totally unfettered free play. The conduct, behaviour and attitude of the petitioner in his inaction or negligence are the relevant factors for taking into consideration while consideration of the delay explained. Thus, when the facts of the case on hand are tested on the touchstone of the principles laid by the Hon’ble Supreme Court in the above decision, the answer is in the negative, the petitioner has failed to approach the Court within reasonable time, he failed to explain the delay of 915 days satisfactorily and not entitled for condonation of such inordinate delay in filing an application to set aside the dismissal order dated 03.08.2018.
15. In the result, this civil revision petition is dismissed as devoid of merits confirming the impugned order dated 26.04.2022 in I.A.No.1778 of 2021 in O.S.No.778 of 2013 on the file of the learned Chief Judge, City Civil Court at Hyderabad.
16. However, in the circumstances of the case, there shall be no order as to the costs. Miscellaneous applications, if any pending, shall stands closed.
