Abdul Bari v Vertex Commodities and Finpro Pvt Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **CRP.No.79 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CMA 33/2016 DATED 02-11-2017 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN OS 838/2008 DATED 23-12-2015 OF PRINCIPAL SUB COURT,ERNAKULAM** ## **REVISION PETITIONER/PLAINTIFF :-** **ABDUL BARI AGED 46 YEARS, S/O. MOOSAKUTTY MOULAVI, KOTTACHALIL HOUSE,KAITHAPOYIL, PUTHUPADI POST, KOZHIKODE TALUK & DISTRICT** **BY ADVS. SRI.ABDUL JALEEL.A SMT.M.A.SULFIA** **RESPONDENT/DEFENDANT :-** **VERTEX COMMIDITIES AND FINPRO PVT LTD THOTTATHIL TOWER, 2ND FLOOR, 'MARKET ROAD,ERNAKULAM REPRESENTED BY SEO, K J THOMAS** **R1 BY ADV. LATHA ANAND ,NO MEMO** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP.No.79 OF 2018** **2** ## **ORDER** ## **Dated this the 18th day of December 2019** The present revision petition is directed against the order dated 02.11.2017, whereby the miscellaneous appeal preferred against the order dated 23.12.2015 of the Principal Subordinate Judge, Ernakulam rejecting the I.A.Nos.3981/14 and 3982/14 in O.S.No.838/2008 seeking setting aside of the exparte judgment and decree dated 28.02.2009 was dismissed. 2. The facts which are necessary for adjudication of the present appeal are the respondent/plaintiff instituted a suit for recovery of an amount on the ground that the cheques issued in discharge of the legal liability on presentation dishonoured. He had filed a complaint under Section 138 of the Negotiable Instrument Act. The suit was filed on 27.09.2008 and at that time, the criminal proceedings were pending and was represented by counsel for Section 138 proceedings. The suit was **CRP.No.79 OF 2018** **3** decreed ex parte on 28.02.2009. Two interlocutory applications were preferred by the petitioner/defendant seeking condonation of delay of 2002 days on the premise that he resided at Calicut and worked at Gulf for a long time. There was no one in the family to help him, who was familiar with the legal practitioners at Kochi. He has been treated for some ailment for long time. The fact of the ex parte decree came to the knowledge only during the execution proceedings and by end of August 2014, he managed to engage a lawyer at Kochi. 3. The aforementioned contentions were refuted by plaintiff by denying the ailment in the absence of any record. The defendant was represented by a counsel in proceedings under 138 of the NI Act who could have easily defended the suit. The Trial Court on the basis of the averments and affidavits that were brought on record, dismissed the applications vide order dated 23.12.2015. C.M.A No.33 of 2016 preferred by the **CRP.No.79 OF 2018** **4** defendant before the Second Additional District, Court, Ernakulam was also dismissed. 4. The learned counsel submits that the exparte decree cannot be executed as criminal complaints ended into acquittal on the premise that the amounts sought to be recovered had already been recovered by the plaintiff. The aforementioned evidence is essential and necessary to be brought on record, in case an opportunity is given to him. The delay was neither intentional nor wilful but for the reasons mentioned in the application accompanied by an affidavit. Even Ext.A1, the medical certificate was also not examined by the lower Court. The decree of Rs.10 lakhs cannot thus be executed without any defence of the defendant and prays for indulgence subject to the terms and conditions that this Hon'ble Court deem it appropriate. 5. Per contra, the learned counsel appearing on behalf of the plaintiff/respondent submits that the delay in the instant case is intentional and **CRP.No.79 OF 2018** **5** willful. There has to be a distinction between a delay and a nominal delay. No explanation much less reasonable has come forth in seeking condonation of delay of 2002 days. The facts as noticed above would reveal that petitioner/defendant had the knowledge of the pending suit, in view of the fact that the proceedings under Section 138 of the N.I Act was contested through the assistance of the lawyer. The medical record also do not support the case. In support of the aforementioned contentions, the counsel relied upon two citations in _**Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013)12 SCC 649]**_ and _**Brijesh Kumar & others v. State of Haryana & others [2014(11)SCC 351].**_ 6. I heard the learned counsel for the parties and also appraised the paper book. Having considered the matter as well as the fact that the complaint under Section 138 of the N.I Act was contested through the assistance of an advocate, **CRP.No.79 OF 2018** **6** the explanation given in the application do not reflect that the petitioner/defendant had been diligent in not appearing in suit proceedings. The explanation given lacked _bonafide._ The law with regard to the condonation of delay has been pondered in many judgments and the judgment in _**Esha**_ _**Bhattacharjee supra**_ laid down the following principles :- 15. From the aforesaid authorities the principles that can broadly be culled out are: (i) There should be a liberal, pragmatic, justiceoriented, 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 factsituation. (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. **CRP.No.79 OF 2018** **7** (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 encapsule 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 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 alls 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. **CRP.No.79 OF 2018** **8** (xii) The entire gamut of facts are to be carefully scruitinized 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. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 7. The aforementioned principles laid down that the approach should be justice oriented and not otherwise. Provisions of Order IX Rule 13 also enables the Court to protect the interest of the decree holder while allowing the applications subject to terms and conditions. This Court would not have accepted the plea of condonation of delay, had the complaint under Section 138 preferred, been **CRP.No.79 OF 2018** **9** dismissed on the premise that the amount claimed had already been realized. 8. The learned counsel for the respondent disputes the maintainability of the revision petition in the absence of challenge to the order of the Trial Court. I cannot remain unmindful to the fact that once the order of the Trial Court was assailed before the lower appellate court, it merged by applying the doctrine of merger. In my view, it is a vital case where evidence is liable to be brought on record and for that purpose, I deem it appropriate to set aside the ex parte judgment and decree and dispose of the revision petition by imposing the following conditions : (1) petitioner/defendant shall within the period of one month from the receipt of certified copy of the order, deposit a sum of Rs.5 lakhs in fixed deposit before the Trial Court, which would entail the maximum interest. (2) Over and above the aforementioned deposit, to defray the course of litigation, I deem it appropriate to impose a cost of Rs.50,000/to be paid to the respondent/plaintiff. **CRP.No.79 OF 2018** **10** (3) defendant shall within a period of 15 days from appearance file the written statement along with the document and application. (4) the Trial Court shall undertake the exercise of admission and trial and after framing the issues, will provide sufficient opportunities to lead evidence to the parties to the lis and shall decide the suit within a period of six months. It is made clear that none of the parties would unnecessary seeks adjournments. The Trial court would not be prevented to pass any appropriate order in accordance with law in case of such delaying tactics. Accordingly, the Revision Petition is disposed of. ## **Sd/-** **AMIT RAWAL JUDGE** **SMA**