2022 (4) TMI 1422 - HC - Indian Laws

Condonation of delay in filing Restoration application - HELD THAT - The prescribed period of limitation for filing a restoration application is 30 days from the date of dismissal. It is not in dispute that the respondent No. 1 was served with the notice of the execution petitions on 20.08.2015 and also appeared through an advocate. Thereafter, the said execution petitions also came to be adjourned from time to time. Meaning thereby, the respondent No. 1 was in very well know of the dismissal order dated 12.02.2013, at least on 20.08.2015. Moreover, the applications in questions came to be filed on 13.04.2016. In the interregnum, the respondent No. 1, on service of Distress Warrant on 15.03.2016, also assured to settle the matter and to make payment. Thus, from the above, it is abundantly clear that there was delay in filing the restoration applications, however, record reveals neither any delay condonation application is filed nor is there any prayer to condone the delay appear to have been made in the said restoration applications. There appears contradictions in the version of the respondent No. 1 inasmuch as, though the respondent No. 1 was served with the notice on 20.08.2015, it stated to have knowledge of dismissal only on 15.03.2016 when Distress Warrant came to be issued. Further, the respondent No. 1 not only filed the restoration applications before the learned trial Court concerned but also had filed the civil revision applications before this Court wherein, in delay condonation application, prayer was made to condone the delay of 1074 days. Accordingly, the Court finds substance in the submissions advanced by the learned advocate for the petitioner and in the considered opinion of the Court, the petitions merit favourable consideration and to remand back the matter for de novo consideration of the restoration applications. The Court is conscious of the fact that the petition is filed under Article 227 of the Constitution of India and the scope for interference is very scant - matters are remanded back to the trial Court concerned to decide the same afresh, after affording an opportunity of hearing to both the sides, in accordance with law and on merits - Petition allowed in part by way of remand.

Summary

Issues Involved:
1. Legality of the restoration applications filed beyond the time limit.
2. Consideration of false statements and misstatements in the restoration applications.
3. Application of the principles of natural justice and substantial justice.
4. Delay in filing the restoration applications and the absence of a delay condonation application.
5. The role of the respondent being a government undertaking in the consideration of the case.

Detailed Analysis:

Legality of the Restoration Applications Filed Beyond the Time Limit:
The petitions challenge the common judgment and order dated 18.04.2018, which restored Misc. Civil Application Nos. 79 and 78 of 2004, dismissed for default on 12.02.2013. The petitioner argued that the restoration applications were filed beyond the time limit, making the impugned order illegal, perverse, and arbitrary. The petitioner emphasized that the respondent No. 1, being a government undertaking, should not receive undue leverage, especially given the inordinate delay and false statements.

Consideration of False Statements and Misstatements in the Restoration Applications:
The petitioner contended that the respondent No. 1 made false statements in the restoration applications, claiming ignorance of the dismissal order until 15.03.2016, despite being served notice of the execution petitions on 20.08.2015. The trial court failed to consider these misstatements, which should have influenced the decision against restoration.

Application of the Principles of Natural Justice and Substantial Justice:
The petitioner argued that the principles of natural justice and substantial justice should apply to those who come with clean hands, which was not the case with respondent No. 1. The trial court should have considered the mala fides, negligence, inordinate delay, and unsupported statements of the respondent No. 1 while exercising discretion.

Delay in Filing the Restoration Applications and the Absence of a Delay Condonation Application:
The prescribed period for filing a restoration application is 30 days from the date of dismissal. The respondent No. 1 was aware of the dismissal order on 20.08.2015 but filed the restoration applications on 13.04.2016 without a delay condonation application. The trial court condoned the delay without any prayer for it, solely because respondent No. 1 was a government undertaking, which the petitioner argued was against the facts and settled law.

The Role of the Respondent Being a Government Undertaking in the Consideration of the Case:
The trial court allowed the restoration applications, considering the respondent No. 1 as a government undertaking and the involvement of public money. The court took a lenient view, despite acknowledging the negligence and inactivity of the respondent No. 1. The petitioner argued that this leniency was unjustified and contrary to legal principles.

Conclusion:
The High Court found substance in the petitioner’s arguments and noted contradictions in the respondent No. 1’s statements. The court emphasized that sufficient cause is paramount in delay applications, and if imbibed with laxity and mala fides, the delay should not be condoned. The court decided to remand the matter for de novo consideration by the trial court, ensuring adherence to legal principles and providing both parties an opportunity for a fair hearing. The impugned judgment and order dated 18.04.2018 were set aside, and the trial court was directed to expedite the disposal within three months. The amount deposited by respondent No. 1 was ordered to be retained as per the previous order.