1. The matter relates to an application under Section 5 of the Limitation Act for condonation of delay in filing the instant appeal and an application under Section 21 of the RDDBFI Act, 1993.
2. Let us take up the application under Section 5 of the Limitation Act.
3. The impugned order is dated 17th February, 2004 by DRT, Guwahati, and the appeal was filed on 16th November, 2005.
4. Apparently, there has been a long delay in filing this appeal by the appellant, Mrs. Punam Wang Khem Singh Bhatia.
(b) The appellant came to know of the entire proceeding of the case and the impugned judgment and order only in the middle of October, 2005 and she obtained certified copy on 18th October, 2005.
(c) Her husband is in the army and her brothers who are contesting the proceeding as parties thereto did not inform her the same.
(d) She did not even know that she was a party to the proceedings or the case, no notice was served upon her by the Tribunal.
(e) In addition to that, her brother in writing informed the Tribunal that her address was in Secunderabad.
(f) Financial institution in their affidavit of service has stated and annexed a Speed Post despatch notice addressed apparently to that at Punam Wanghem, Secunderabad and that was not her full address.
(g) DRT also did not take resort to the substituted service on her as per rules to ensure her attendance or to enable her to be aware of the proceedings.
(h) Therefore, the delay should be condoned and appeal admitted so that the appellant gets a chance to be heard on merits.
6. As against this, the learned Advocate for the respondent has to submit mainly on the following lines: (a) If the address given in para 5 of the application under Section 5 of the Limitation Act is compared with the application together with the address the appellant had supplied before the DRT on 25th February, 2003, it will appear that the addresses are different.
(b) The notice or summons to the defendant No. 2 (b), i.e. the appellants herein, were sent by the DRT by registered post on 30th April, 2003 in the address of the defendant No. 2(b) as mentioned in the application before the DRT as aforesaid. It was duly ordered that the defendant No. 2(b) did not turn up and the Registrar recorded the declaration about the presumption of service of notices on 23rd June, 2003. The case then on the usual course, was directed to be heard 'ex parte' against the defendant No. 2(b).
(c) The notice was sent by registered post with A/D. There was presumption of service though the acknowledgement card was not received back after more than one and a half months in accordance with Regulation 17(c) of the DRT Regulations or Practice, 1997, which is applicable to Guwahati, The Registrar duly made the declaration only when the acknowledgement card was not received back after the expiry of 30 (thirty) days from the date of summons/notices which were properly addressed by the registered post with acknowledgement due. The delay is not explained with sufficient reasons. The delay cannot be condoned and the application under Section 5 of the Limitation Act should be dismissed being devoid of merits.
7. In reply, the learned Advocate for the appellant submits that the alleged contradiction can be explained this way that the address mentioned in Section 5 application by the appellant is the current postal address where she is presently living with the husband. But at the relevant time when the summons were issued to the appellant, the correct address was as mentioned in the application filed by the brother before the DRT.8. Now, having duly considered the respective submissions of the learned Advocates of both sides, I am of the opinion that the delay has sought to be explained in a reasonable manner to make it sound, authentic and reliable. The delay may be long but we do not go by the length of time but by the acceptability of the explanation for the whole period of delay in its totality. Unless there is any deliberate laches or culpable negligence or mala fide on the part of the applicant, a liberal approach has to be taken and the delay should be condoned to hear out the case on merits. I do not think, the petitioner-appellant is guilty of anyone of those and the explanations afforded are quite acceptable.
9. The delay in filing this appeal is condoned and, accordingly, the appeal is admitted on the score of Section 5 of the Limitation Act.
10. Next, let us take up the application under Section 21 of the RDDBFI Act, 1993.
11. In connection with the application under Section 5 of the Limitation Act in praying for condonation of delay, the petitioner-appellant has already explained the circumstances for the delayed filing of the appeal which now stands condoned.
12. In addition to the facts and circumstances already stated in connection with the above, the petitioner-appellant in her application under Section 21 of the RDDBFI Act, 1993, has added some other facts in support of her claim for complete waiver of the pre-deposit as mandated under Section 21 of the RDDBFI Act, 1993, before the appeal can be legally entertained. That relates purely to her financial incapacity to pay off the said pre-deposit. She has stated that she is a simple housewife married to one Lieutenant Colonel S. Bhatia of the Indian Air Force and is presently residing at Secunderabad. She has further stated that she is solely dependent on the earnings of her husband and has no source of income of her own and she has no property whatsoever in her name and maintains a meagre balance in her own savings account. It is also submitted on her behalf by the learned Advocate for the petitioner-appellant that she has a good chance of success in the appeal and in the facts and circumstances, the prayer is for complete waiver of the amount of pre-deposit as enjoined under Section 21 of the Act.
13. The respondent financial corporation has filed an affidavit-in-opposition to the Section 21 application. Learned Advocate for the respondent financial corporation has contended in accordance with the affidavit-in-opposition that the petitioner has suppressed material facts, made some false assertions. He has further submitted that the petitioner-appellant had failed to appear in the original application after valid service of summons, that he had knowledge of the proceedings in Guwahati and further that the appeal has been filed with mala fide intentions to delay the recovery proceedings. It is, therefore, submitted that the appellant has no case and the appeal is frivolous and it should be dismissed.
14. Importantly, for the purpose of Section 21 of the RDDBFI Act, 1993, regarding the pre-deposit, what has been stated by the petitioner-appellant regarding her financial position and the fact that she is only a housewife, having no income of her own, have not been controverted. Taking an overall view of things and the petitioner's apparent financial condition, I think, the petitioner-appellant should be exempted from paying any pre-deposit under Section 21 of the RDDBFI Act, 1993, The moot point is, she should be allowed to contest and to have the appeal heard out on merits. Section 21 should not come in her way in terms of the pre-deposit to deny her the access to justice in view of the facts and circumstances as explained by her and which are already laid down.
15. Accordingly, the application under Section 21 of the RDDBFI Act, 1993, is allowed and the appeal is accordingly entertained.
16. Thus both the applications under Section 5 of the Limitation Act and under Section 21 of the RDDBFI Act, 1993, are accordingly disposed of.
17. The respondents are directed to file affidavit-in-opposition to the memorandum of appeal within five weeks, reply thereto within three weeks thereafter since this is a case of Guwahati.
18. Liberty to mention after the exchange of affidavits is completed and after usual notices.
19. A Xerox of this order may be made available to the Advocates for the parties.