Cyriac Philip v. Kottayam District Co-operative Bank Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** **WA NO. 779 OF 2012** **AGAINST THE ORDER 8986/2009 OF HIGH COURT OF KERALA DATED 22.7.2009** ## **APPELLANT/PETITIONER:** CYRIAC PHILIP, AGED 50 YEARS, S/O.PHILIP, RESIDING AT MUKKADIYIL, VELLOOR, SANKRANTHI.P.O, KOTTAYAM DISTRICT. BY ADVS.SRI.PADMALAYAN.P.P. SRI.M.R.ARUNKUMAR ## **RESPONDENTS/RESPONDENTS:** 1 THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD. REPRESENTELD BY ITS SECRETARY, HEAD OFFICE, P.B.NO.140, KOTTAYAM-686001. - 2 THE AUTHORISED OFFICER THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD, HEAD OFFICE, P.B.NO.140, KOTTAYAM-686 001. 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES KOTTAYAM DISTRICT, KOTTAYAM.P.O, PIN-686 001. BY ADV SRI.T.A.SHAJI (SR.) SRI. TEK CHAND, SR. G.P. SRI.ATHUL SHAJI, SC, R1, R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 2 :: ## **JUDGMENT** Dated this the 22[nd] day of August 2022 ## **S.MANIKUMAR, C.J.** Writ appeal is filed being aggrieved by the order dated 22.7.2009 in W.P.(C)No.8986/2009 by which, the writ court dismissed the writ petition. Writ petition was filed to quash Ext.P1 notification for sale issued by the 2[nd] respondent – the Authorised Officer wherein the immovable property of the appellant was put in auction sale for realisation of loan outstanding through the proceedings under the SARFAESI Act. 2. Before the writ court, appellant/writ petitioner sought for the following reliefs: i) call for the entire records leading to Ext.P1 notification issued by the 2[nd] respondent and issue a writ of certiorari or other appropriate order or direction and thereby quash the Ext.P1 to the extent to which it effect the property belonging to the petitioner. ii) issue appropriate writ, order or direction directing the respondents to grant the petitioner to settle the loan account by one time settlement by granting the petitioner 6 months time. WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 3 :: 3. After considering the rival submissions and also the finding that there was default in paying instalment, vide judgment dated 22.7.2009 writ court ordered thus: “On going through the records produced by the Bank, it appears that the contentions raised by the petitioner are devoid of any merit or bonafides. As observed earlier, nothing prevented the petitioner from approaching this court immediately after 28.3.2009. If the Bank had actually refused to accept the amount of Rs.1,00,000/- stated as offered by the petitioner on 28.3.2009 in compliance with the interim order passed by this court on 23.3.2009. Admittedly, there is no case for the petitioner that he has filed any objection in this regard before the respondent Bank as well. Similarly, there is no case of the petitioner that, he had approached the Bank or any other authority projecting his grievance on any day before the confirmation of sale or before the date of issuance of the sale certificate in this regard. This being the position, the case put forth by the petitioner does not call for any interference. As such, I.A.8770/2009 filed by the petitioner on 15.07.2009 to implead the concerned purchaser of the property to whom the sale was made as well as I.A.8771/2009 seeking to amend the writ petition do not deserve any consideration. In the said circumstance, interference is declined and the writ petition as well as the I.A. are dismissed accordingly.” 4. Being aggrieved, instant writ appeal is filed with a delay of 1066 days. Along with the writ appeal, C.M.Appln.No.1 of 2012 (C.M.Appln.341/2012) has been filed seeking condonation of delay. Reasons assigned for condonation are as hereunder: “2. This Writ Appeal is filed challenging the order dated 22.7.2009 in W.P.(C)No.8986/2009 of the learned Single Bench of this Hon'ble Court. WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 4 :: 3. The Judgment was passed by the learned Single Judge of this Honourable Court on 22.7.2009. The copy application was filed on 12.8.2009 and the copy was received on 12.8.2009. Hence there is delay in filing the appeal. The delay was caused due to the following reasons. 4. Since I am out of state I entrusted my friend, M.Sunilkumar to look after the case filed before this Honourable Court. It is submitted that since I was in Mumbai, I used to give instructions to my counsel through my friend Mr. M.Sunilkumar aged 55 and residing at Maniyamkattil, Vaikkom P.O., Vaikkom, Kottayam and signed papers also used to be given through him. Financial arrangements were also made through him and I was having good communication from him and we were in good terms upto December, 2009. But due to the reason not known to me he had not intimated about the progress of the further proceedings in the matter. 5. It is submitted that after the dismissal of the petition to implead the Auction Purchaser of the property and the application to amend the Writ Petition according to the subsequent changes in the Writ Petition. I had made arrangement through the said Sunilkumar for further action in the matter. 6. The Writ Petition was dismissed on 22.7.09 and the judgment was received on 12.8.09. 7. On 15.8.09 I made arrangements to file appeal against the dismissal through the said Sunilkumar. Having the said Sunilkumar also agreed to contact in the meanwhile the auction purchases and the Bank Authorities however to settle the matter and get back the property by paying compensation and the purchase money to the Auction Purchaser. 8. Whenever I am calling him to know the present position of the case he used to inform me that compromise was not possible and the matter was taken in Appeal and that it is pending and would take a long time for final hearing. Actually he had not made any arrangement for filing the appeal so far in spite of the receipt of the required expenses from me for filing of the appeal, and for the last some months there was no communication between us even though I tried my level best. And it is only on 22.3.12 when I WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 5 :: contacted the counsel that I knew that there was no appeal filed and that the said Sunilkumar did not approach the counsel as the representative of the Appellant to make arrangements for filing appeal after the dismissal off the Writ Petition and after the receipt of the copy of the judgment of the Writ Petition. 9. It is submitted that I came to know about the nonfiling of the Writ Appeal only on 20.3.12 when I came back to Kerala in my residential house. Immediately I contacted my lawyer and taken the case bundle back and entrusted the same to my present lawyer on 27.3.12 to file this Appeal. 10. It is submitted that the Writ Petition was dismissed on 22.7.09 and the copy of the judgment was received on 18.8.09 and there is delay in filing this Appeal. 11. If the delay is not condoned I will be put to irreparable loss and hardship and it is most respectfully submitted that the above delay was caused not due to any laches or negligence from my part or from the part of my counsel but due to the above said reasons. 12. The Appeal is having merit and there is every chance for me in succeeding in this appeal.” 5. We have gone through the reasons assigned in the affidavit filed in support of the petition for condonation of delay and not satisfied with the same. 6. In this regard, reference has also been made to decision of the Hon'ble Apex Court with regard to delay in filing: “In **Esha Bhattacharjee v. Raghunathpur Nafar Academy** , reported in **(2013) 12 SCC 649** , has been rendered with reference to an application filed for condoning the delay. Principles culled out by the Hon'ble Apex Court are extracted hereunder:- 21. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 6 :: 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 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 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 WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 7 :: 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 are 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. 22. 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. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. 23. Presently to the assertions made in the application for condonation of delay and the asseverations in oppugnation of the same. It may be stated here that the Division Bench while dealing with the application for condonation of delay has also adverted to the legal tenability of the interim order in a matter of appointment and approval of a teacher, and condoned the delay. It does not WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 8 :: require Solomon’s wisdom to perceive that the delay was colossal. In the application for condonation of delay the appellant before the High Court had stated about the circumstances in which the order came to be passed by the learned single Judge, the order in the earlier contempt petition and the second petition for contempt, the extinction of right of the respondent employee to continue in the post and thereafter proceeded to state the grounds for condonation of delay. We think it apposite to reproduce the grounds: - “14. That from the record it appears that the order impugned was communicated to the then managing committee including the head master in question and the said fact is totally unknown to the newly elected managing committee as they have been elected on 20.9.2009 and they have been handed over charge on 21.11.09 and to the teacher in charge who has been handed over charge on 1.3.10. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the Ld. Advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over the brief from Mr. Banik, Ld. Advocate to Mr. Baidya, Ld. Advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 07.06.2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application. 15. Having got no other alternative applicant have been advised to prefer an appeal without certified copy and the leave has been prayed for and the same was allowed. The photocopy of the receipt for application of Xerox certified copy is annexed herewith and marked with letter “A”. 24. That the delay occasioned in presenting the said 13 mandamus appeal has taken place due to the aforesaid WA NO. 779 OF 2012 & C.M.Appln.1 of 2012 :: 9 :: reasons which was beyond the control of the applicants and was completely unintentional.” 7. For the reasons stated supra, C.M.Appln.No.1 of 2012 filed seeking condonation of delay is dismissed. 8. Consequent to the dismissal of C.M.Appln.No.1 of 2012, this appeal is also dismissed. All pending interlocutory applications shall stand closed. **sd/S.MANIKUMAR CHIEF JUSTICE** **sd/SHAJI P. CHALY JUDGE** jes