M.P. Gurudayal and Sindhu Gurudayal v. BRD Finance Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** **F.A.O.NO. 136 OF 2022** **AGAINST THE ORDERS DATED 08.04.2021 IN I.A.NOS.2413 AND 2414 OF 2019 IN O.S.NO.1445 OF 2012 OF THE PRINCIPAL SUB COURT, THRISSUR** ## **APPELLANTS/PETITIONERS/DEFENDANTS:** **1 M.P.GURUDAYAL AGED 56 YEARS, S/O.LATE PALANIYAPPAN, GURU NIVAS, MULLACKAL, ALAPPUZHA.** - **2 SINDHU GURUDAYAL W/O.M.P.GURUDAYAL, GURU NIVAS, MULLACKAL, ALAPUZHA.** **BY ADVS. GEORGE SEBASTIAN JAYAN.C.DAS** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **BRD FINANCE LIMITED, KUNNAMKULAM, THALAPPILLY TALUK, REP. BY ITS LITIGATION CLERK, MANI.S, S/O.SANKARAN, MULAMKUNNATHUKAAVU HOUSE, MULAMKUNNATHUKAAVU P.O., THRISSUR, PIN-680 581.** **BY ADVS. SANTHOSH P.PODUVAL R.RAJITHA CHITHRA S.BABU** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 F.A.O.No.136 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. This is an appeal filed under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908. 2. The appellants are aggrieved of the order dated 08.04.2021 in I.A.Nos.2413 and 2414 of 2019 in O.S.No.1445 of 2012 on the files of the Principal Sub Court, Thrissur. I.A.No.2413 of 2019 was filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 2097 days and I.A.No.2414 of 2019 was filed under Order IX, Rule 13 of the Code seeking to set aside the exparte decree dated 30.09.2013 passed in O.S.No.1445 of 2012. Both those applications were dismissed. 3. On 14.11.2022, notice was directed to be served on the respondent. As per the order in I.A.No.1 of 2022, execution of the decree in O.S.No.1445 of 2012 was stayed on the condition that the appellants shall furnish security to the decree debt to the satisfaction of the court below, within two months. 4. Heard the learned counsel appearing for the appellants. Despite giving notice, the respondent did not choose to appear before the court. 3 F.A.O.No.136 of 2022 5. The exparte decree was passed on 30.09.2013. The appellants took time till 2019 to file a petition to set aside the said decree. There occurred a delay of 2097 days. The reason stated for the delay is that the mother of the 1[st] appellant was under treatment continuously and she expired on 17.06.2017. The appellants were said to be involved in looking after the affairs of their mother and hence they could not file the application in time. 6. The respondent opposed the applications by filing a counter statement. The respondent denied the reasons stated by the appellants for the delay. The court below held that in the absence of any material in order to substantiate their contentions regarding the treatment and death of the mother being two years before filing of the applications, the plea of the appellants was not acceptable. The court below placed reliance on the principle laid down **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** to hold that the appellants failed to substantiate the reasons to condone the delay. 7. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107]** , in the context of Section 5 of the Limitation Act, 4 F.A.O.No.136 of 2022 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 8. In **Esha Bhattacharjee** (supra) the Apex Court while summarising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, 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. Para.21 of the judgment reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts 5 F.A.O.No.136 of 2022 are not supposed to legalise injustice but are obliged to remove injustice. 21.2 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. 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 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. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 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. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 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. 6 F.A.O.No.136 of 2022 21.9 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. 21.10 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. 21.11 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. 21.12 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. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” [underlines supplied] ## 9. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, 7 F.A.O.No.136 of 2022 which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee** (supra). Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 10. As pointed out above, the duration of the delay in filing the petition for setting aside the exparte decree is 2097 days. The period of delay is inordinate and the question of prejudice to the respondent in the event of setting aside the decree certainly requires consideration. No justifiable reason is placed on record by the appellants to justify the delay. We are therefore of the view that, it is not possible to exclude the possibility of prejudice to the respondent if the decree is set aside and hence the appellants ought to have proved with sufficient evidence the reasons for the delay. But, they failed. Therefore, the findings of the court below are not liable to be interfered 8 F.A.O.No.136 of 2022 with. Accordingly, this appeal fails and the appeal is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr