1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CAZ No. 470/2010 in L.P.A. St. No.11056/2010 in WRIT PETITION NO. 1337/1997 (D) (Telecom Engineering Staff Credit Co-op. Society Akola .vs. S.S. Deshpande and others ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.R. Deshpande, Advocate for Applicant. Mr. P.C. Madkholkar, Advocate for Respondent no.1. CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : 15.06.2011 DATE OF PRONOUNCING THE ORDER: 29.06.2011 The applicant/appellants/Telecom Engineering Staff Credit Co-operative Society, Akola seeks condonation of 4 months and 19 days delay in preferring an appeal against the judgment of dismissal of Writ Petition No. 1337/1997 preferred by the applicant. The applicant had filed said writ petition against the judgment dated 22.11.1996 passed by the State Co-operative Appellate Court allowing Appeal No. 112/1993 of respondent no.1 preferred against award passed by respondent no.3 i.e. Authorized Officer for inquiry under Section 88 of the Maharashtra Co- operative Societies Act,1960 and remanding the matter 2 to respondent no.2 with liberty to conduct fresh inquiry if needs to be conducted. The respondent no.2 had appointed respondent no.3 on 11.9.1985 to inquire into the acts of misfeasance, breach of trust, misapplication and misappropriation of funds of the applicant society allegedly committed by respondent no.1 along with eight other delinquents during the period in between 1.7.1979 to 30.6.1983 . During the said inquiry, though respondent no.1 was exonerated of five charges levelled, he was held responsible for four charges i.e. item nos. 1 to 4 of the charges framed in the inquiry. He was also held responsible to compensate applicant society and pay Rs.1,86,463.07 ps., Rs.16700/-, Rs. 10,074.78 ps and Rs.30,575.80 ps respectively for charges established at item nos. 1 to 4 with interest @ 12 % P.A. from the date mentioned in the award up-till realisation. The respondent no.1 preferred above referred appeal to Co-operative Appellate Court Mumbai, Nagpur Bench against the said award which was allowed as narrated hereinabove. The writ petition preferred by the applicant against the said order was dismissed on 11.1.2010 by the learned Single Judge and against the said order the applicant intends to prefer the appeal. Mr. Madkholkar, learned counsel appearing on behalf of respondent no.1 preferred Civil Application No. 299/11 inter alia contending that respondent no.1 retired from service is paralysed, bed-ridden and has also lost hearing and is not in a position to understand, give instructions and to file affidavit and sought for appointment of next friend. As the said request was not 3 objected on behalf of the applicant, son-in-law of respondent no.1 Mr. Ravindra Kulad was appointed as next friend. Mr. A.R. Deshpande, learned counsel for the applicant urged that the order passed by the learned Single Judge on 11.1.2010 was communicated to the applicant in the month of May, 2010. After receipt of the said communication, the matter was discussed amongst the members of the Executive Committee of the applicant. The certified copy was obtained on 20.5.2010 and legal opinion was sought. After receipt of legal opinion, again the matter was discussed. By the Resolution dated 2.6.2010, it was resolved to file an appeal against the judgment delivered by the learned Single Judge. The record and case papers were entrusted to the counsel in the second week of June, 2010 for drafting the appeal and after the appeal memo was drafted, same was again discussed, considered and finalized and thereafter the appeal was preferred. It is urged that thus in the said process, delay of about 4 months and 19 days occurred in preferring the appeal. The learned counsel urged that all the said happenings, reveal that there was no willful default or negligence on the part of the applicant in preferring the appeal. It is urged that the applicant had good case for success and as such non-condoning of delay would adversely affect interest of large members of the society and so also the fund of the society. It was urged that no prejudice will be caused to the respondent if the delay is condoned as he would be getting all the opportunity to contest the matter on merits. 4 Mr. Madkholkar, learned counsel for respondent no.1 urged that present application is sheer abuse of process of law and is outcome of personal vendetta. It was urged that during the pendency of the litigation the condition of respondent no.1 has become so precarious that he is unable to write, read, speak or hear and still the litigation is continued for settling the scores in the elections, mala fide with oblique motive. It was further urged that hardly any material is placed on the record for supporting the contention that the communication of decision given was received in the month of May,2010 or legal opinion was sought thereafter or resolution as alleged was passed or papers were given for drafting in the second week of June or time was consumed for further events as alleged. It was urged that laying a blame upon the earlier advocate about non-communication of the decision without any material to support the same implies that false statements are made about the same. The same also reveals of not taking timely steps within the prescribed period of limitation. It was contended that considering the nature and extent of controversy involved, it is difficult to accept that such time would be required either for taking legal opinion and/or for drafting and finalizing the appeal memo. It was urged that only lame excuses are advanced for continuing and/or prolonging the litigation for harassing respondent no.1. It was thus urged that even accepting the matter as stated in the application, the same miserably fails to make out any sufficient cause being shown by the applicant for not preferring the appeal within the prescribed period of 5 limitation. It was urged that considering the gross delay of 4 months and 19 days occurred in preferring an appeal, hardly any room is left for the Court to exercise the discretion in favour of condoning delay. It was urged that considering the lame excuses advanced for ulterior purpose, the application not only deserves to be dismissed but compensatory costs deserve to be awarded as the litigation is sought to be continued for satisfying personal vendetta. It was pointed that ultimately challenge being to the order passed by the appellate Tribunal remanding the matter with due liberty to respondent no.2 to conduct the fresh inquiry, no prejudice at all is likely to be caused to the applicant due to non-condonation of delay. Now before determining the merits of the rival submissions, the principles for extension of time under Section 5 of the Limitation Act can be summed up as follows:- (a) The party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the proceedings , within the prescribed time of limitation; (b) A litigant should not be easily permitted to take away a right which has accrued to his adversary by lapse of time; (c) the explanation has to cover the entire period of delay; (d) the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court 6 by Section 5. After sufficient cause is shown then the Court has to enquire, whether in its discretion it should condone the delay; (e) The discretion conferred on the Court is a judicial discretion and must be exercised to advance substantial justice; Now considering the case advanced on behalf of the applicant, it is difficult to perceive that in the event of the applicant diligently prosecuting the legal proceedings, they would not become aware of passing of an order by learned Single Judge on 11.1.2010 up-till month of May,2010. At any rate hardly any material in support of such submission advanced, has been placed on the record either in the shape of letter from an advocate and/or any other contemporous record of the office of the applicant for supporting submission that till month of May,2010, the information of the decision was not communicated to the applicant as canvassed. Apart from the same, hardly any record from the office of the society is produced even for supporting further submission advanced of legal opinion being sought thereafter, decision to prefer a LPA was resolved on 2.6.2010. Even case regarding the further contentions that thereafter the papers were entrusted to the counsel in the second week of June for drafting of appeal memo or the matter was again discussed after appeal memo was drafted and thereafter the same was finalized etc. is not different. No efforts has been made to place upon the record any material in support of the 7 said contention. Thus having regard to all the said aspects and no other material being placed on the record except bare word of the President of the society who had verified the application, it is difficult to accept any of the said contentions. Needless to add that non production of such record supporting the said contention which was bound to be in the office of the applicant in event of such events had taken place, would be a circumstance for drawing an adverse inference against the applicant. Having regard to the same, it is difficult to accept that the applicant has explained every day of gross delay of 4 months 19 days in preferring the LPA. Having regard to the same and the challenge being intended to be given to the order of remand, it is difficult to accept that in the event of non-condonation of delay, the grave prejudice would be caused to the applicant. Needless to add that merely because the respondent no.1 would get an opportunity of contesting the appeal on merits, the valuable rights accrued to him due to non- diligent conduct on part of the applicant can not be taken away. Thus no case being made for condonation of delay by exercising the discretion, the application deserves to be dismissed and stands dismissed accordingly. JUDGE JUDGE halwai