1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 1389 OF 2010 1 Mr. [ENTITY], age 65 years, occ. Driver, r/o Ishwar Colony, Near Lathi School, Jalgaon, Taluka and District Jalgaon Petitioner VERSUS 1 Shri [ENTITY], R.E. 26, 28, 30, 32, 2nd Floor, Golani Market, Jalgaon, 2 Shri [ENTITY], Special Recovery and Sale Officer, Attached to the Shri [ENTITY], R.E. 26, 28, 30, 32 2nd Floor, Golani Market, Jalgaon, 3 [ENTITY], 4 Divisional Joint Registrar, Cooperative Societies, Nasik Division Nasik, Tal. And Dist. Nasik, 5 The State of Maharashtra, through Ministry and Dept of Cooperative Respondents Downloaded on - 09/06/2013 16:28:30 2 Ms [ENTITY], advocate holding for Shri [ENTITY], advocate for the petitioner Shri [ENTITY], advocate for respondent nos. 1 and 2 Shri [ENTITY], A.G.P. for respondent nos. 3 to 5. CORAM : [ENTITY], J. DATED : 21 September, 2010 st [ENTITY] :-
1 At the request of learned counsel for the petitioner and by consent, leave granted to delete prayer clause 'A' and to modify prayer clause 'B' suitably for the grant of Application for delay condonation. Amendment be carried out forthwith.
2 Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the petition is taken up for final hearing.
3 By the present petition, filed by the petitioner under [SECTION] and [SECTION] of the [ACT], the petitioner prayed that the impugned order dated 16.9.2009, passed by the Divisional Joint Registrar, Cooperative Societies, Nasik Division, Nasik be quashed and set aside, and also prayed that the Application dated 3.2.2009 preferred by the petitioner for condonation of delay, be allowed.
FACTUAL MATRIX : -
The petitioner herein had taken loan of Rs. 1,50,000/-
from respondent no.1 on 3.12.2003, but since the petitioner herein did not repay the said loan amount and interest thereon regularly and committed default, respondent no.1 herein filed an application on 28.9.2007 and prayed for issuance of recovery certificate under [SECTION] of the [ACT] under [CASE NUMBER].
5 The petitioner herein appeared in the said matter and filed reply on 26.11.2007 and opposed issuance of recovery certificate.
However, recovery certificate was issued in favour of respondent no.
1 on 10.12.2007 by respondent no.3, which is produced at Exh. 'C'.
In the said context, it is the grievance of the petitioner that the said recovery certificate was issued by respondent no.3 without considering the reply filed by the petitioner and without intimating the date of hearing to him and the said certificate was issued abruptly and hurriedly, since the entire proceeding was wrapped up within 40 days. It is also the contention of the petitioner that he had no knowledge about issuance of said recovery certificate on 10.12.2007, and he got the knowledge thereof on 24.1.2009 after receipt of recovery notice dated 13.12.2008 issued by respondent no.1 herein.
Thereafter, the petitioner approached to the Divisional Joint Registrar i.e. respondent no.4 and filed the Revision Application on 3.2.2009 challenging the said recovery certificate dated 10.12.2007, along with the application for condonation of delay since there was apparent delay of almost one year. However, the said application for condonation of delay came to be rejected by respondent no.4 by order dated 16.9.2009. It is the grievance of the petitioner that respondent no.4 passed the said order without giving any cogent reasons.
7 Being aggrieved and dissatisfied by the said order i.e. 16.9.2009, passed by respondent no.4, the petitioner had approached this Court by way of present petition for the prayers as set out herein above.
SUBMISSIONS : -
8 Learned counsel for the petitioner submitted that the petitioner is the driver by profession and he was unaware about the issuance of recovery certificate by respondent no.3 on 10.12.2007, since he was on touring during the said period and the said aspect was not considered by respondent no.4 in the proper perspective. It is also canvassed by learned counsel for the petitioner that the petitioner got the knowledge of issuance of recovery certificate dated 10.12.2007 on 24.1.2009 i.e. on receipt of notice of recovery dated 13.12.2008 issued by respondent no.1 herein, and thereafter the petitioner filed the Revision Application along with the application for delay condonation before respondent no.4 on 3.2.2009, but the said aspect was not considered by respondent no.4 appropriately while passing the impugned order dated 16.9.2009, thereby rejecting the said application for condonation of delay preferred by the petitioner herein.
9 Learned counsel for the petitioner further canvassed that respondent no.4 failed to give proper and cogent reasons for rejecting the application for condonation of delay and the impugned order has been passed by him without evaluating the factual aspects and legal position.
10 Learned counsel for the petitioner also submitted that the petitioner had pleaded and proved the "sufficient cause" for condonation of delay under [SECTION] of the [ACT], but same was not considered by respondent no.4 properly.
Learned counsel for the petitioner also placed reliance on the observations made by Hon'ble Apex Court in the case of N. Balakrishnan vs M. Krishnamurthy, reported at AIR 1998 SC 3222, wherein it was held that : -
" 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause"
under [SECTION] of the [ACT] should receive a liberal construction so as to advance substantial justice vide [PRECEDENT] and [PRECEDENT].
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss."
12 Accordingly, learned counsel for the petitioner submitted that respondent no.4 has taken a pedantic approach and failed to liberally construe the term, "sufficient cause", which was required to be interpreted liberally and widely.
13 Learned counsel for the petitioner further submitted that respondent no.4 has merely stated in the impugned order dated 16.9.2009 that the reasons given by the petitioner herein for delay condonation are not cogent, convincing, proper and correct and said impugned order nowhere reflects why the reasons given by the petitioner were not cogent, convincing and proper. Accordingly, learned counsel for the petitioner urged that the impugned order dated 16.9.2009 passed by respondent no.4 rejecting the application of the petitioner for condonation of delay deserves to be quashed and set aside and the application preferred by the petitioner for condonation of delay is required to be allowed in the interest of justice.
Learned respective counsel for the respondents opposed the present petition vehemently and submitted that the application preferred by the petitioner herein for condonation of delay is vague and ambiguous and even the said application does not disclose the specific number of days of delay caused in filing the said application by the petitioner, and therefore, submitted that such vague and ambiguous application was rejected by respondent no.4 rightly.
15 Learned respective counsel for the respondents also canvassed that the petitioner herein appeared in the proceeding of recovery certificate and filed his say, but did not pursue the said proceeding diligently, which is the fault of the petitioner herein, and therefore, the petitioner cannot take the shelter of the alleged ground hat he is a driver and was on tour, and therefore, was not aware about the issuance of recovery certificate on 10.12.2007.
16 Learned respective counsel for the respondents further submitted that after considering the documents on record, respondent no.4 arrived at the conclusion that the reasons narrated by the petitioner for delay condonation are not cogent, convincing and proper, and therefore, rejected the said application by order dated 16.9.2009 rightly and submitted that no interference therein is warranted under the writ jurisdiction. Accordingly learned counsel for the respondents urged that present petition bears no substance and same is devoid of any merits, and therefore, same be dismissed.
CONSIDERATION :-
17 I have perused the present petition and its annexures, as well as the contents of the application for delay condonation preferred by the petitioner on 3.2.2009, and also perused the impugned order dated 16.9.2009 passed by respondent no.4 rejecting the said application, as well as heard the learned counsel for the petitioner and the learned respective counsel for the respondents, as well as considered the observations made by Hon'ble Supreme Court in the afore said case carefully.
18 It is apparent from the application for condonation of delay preferred by the petitioner herein before respondent no.4 that the petitioner has specifically mentioned his occupation therein that he is a driver. Moreover, it is also apparent from the averments made by the petitioner in the said application for condonation of delay dated 3.2.2009 that the petitioner has specifically mentioned therein that he was on touring and was visiting places to places and was out of station, and therefore, could not get the knowledge of issuance of recovery certificate dated 10.12.2007 and got the knowledge thereof on 24.1.2009 after receipt of notice of recovery dated 13.12.2008 issued by respondent no.1 by Registered Post A.D., and pertinently the impugned order dated 16.9.2009 passed by respondent no.4 does not reflect any reasons for not accepting the said ground put forth by the petitioner for condonation of delay, and therefore, the impugned order dated 16.9.2009, passed by respondent no.4 cannot be termed as "the reasoned order", and hence, same deserves to be quashed and set aside.
19 Moreover, reliance also can be very well placed on the the observations made by Hon'ble Supreme Court in the afore said Ruling (supra) that in every case of delay, there can be some lapse on the part of litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor.
Hence, liberal approach is required to be adopted while considering the application for condonation of delay where sufficient cause for the delay condonation, as contemplated under [SECTION] of the [ACT], is pleaded and proved. In the instant case also, it appears that the petitioner herein has pleaded and proved the sufficient cause for condonation of delay, as contemplated under [SECTION] of the [ACT], and same, apparently, does not smack mala fides, but same was not considered by respondent no.4 while passing the impugned order dated 16.9.2009 in proper perspective, and therefore, also said impugned order deserves to be quashed and set aside, and the Application for delay condonation preferred by the petitioner deserves to be allowed, adopting the liberal approach.
20 However, as observed by Hon'ble Supreme Court in the afore said case (supra) while condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses, and therefore, respondent no.1 deserves to be reasonably compensated while condoning delay after quashing and setting aside the impugned order, and said reasonable compensation can be quantified at Rs. 2,000/-, to be paid by the petitioner to respondent no.1 within the period of three weeks.
21 In the result, present petition is allowed and the impugned order dated 16.9.2009, passed by respondent no.4, stands quashed and set aside and the application for delay condonation dated 3.2.2009 preferred by the petitioner herein is allowed, subject to payment of costs of Rs.2,000/- by the petitioner to respondent no.1 within the period of three weeks from today.
22 Rule is made absolute in the afore said terms.
([ENTITY], J.) dbm/wp1389.10