1. This appeal has been filed challenging the order dated 5th April, 2006 passed by the Presiding Officer of the D.R.T.-II, Mumbai rejecting an application filed by the appellant for setting aside an ex parte decree passed against the appellant on the ground that the application was time-barred in the following circumstances: The respondent Bank had filed an Original Application for recovery of debts due from the appellant and other defendants. The appellant was the original defendant No. 2. He and the defendant No. 3 were the guarantors and the Directors of the appellant No. 1 company. The appellant's wife was impleaded as the defendant No. 4 being the guarantor and the mortgagor of the flat. The summons of the Original Application were sought to be served on the appellant by registered post on the residential address of the appellant which was returned with a postal endorsement 'unclaimed'. As per the practice of the D.R.T. the copy of the judgment and order was sent on the address of the appellant which was undisputedly received by him on 25th July, 2005. Thereafter, the respondent Bank commenced the execution proceeding notice of which was admittedly served on the appellant on 11th September, 2005 and the application for setting aside the decree was filed on 18th October, 2005. In para 4(B) of the application after mentioning that the copy of the judgment and order was received by the appellant on 25th July, 2005, it is stated as follows- The recovery proceedings are shown to have been received by applicant No. 1-Mr. Arun Kumar on 11th September, 2005 and the applicant No. 2-Mrs. Vijaylaxmi on 11th September, 2005. There is the delay of about 16 days in filing this application and the same may be condoned in the interest of justice. Otherwise irreparable loss, harm and injury would be caused to the applicants.
2. In the prayer Clause (d) of the said application it was stated that the delay if any be condoned. The said application was supported by an affidavit of the appellant wherein what was stated in the application had been reiterated and confirmed and it was prayed that the application be treated as a part of the affidavit.
3. The D.R.T., following the judgment of the Bombay High Court in the case oiLalmani Ramnath Tiwari v. Bhimrao Govind Pawar , held that there is presumption of service of summons on the appellant as the registered post packet was returned with the postal endorsement 'unclaimed' and the appellant had not rebutted the said presumption.
4. The learned Advocate appearing for the appellant argued that the delay in filing the appeal may be condoned in the interest of justice.
In support of his contention he has cited judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji , wherein it is held that liberal approach has to be adopted by the Courts in considering whether "sufficient cause" has been shown or not for condonation of delay. That was a case where there was delay in filing the appeal by the State. It was held that there is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of mala fides as a litigant does not stand to benefit by resorting to delay. That was a case where appellant was the State which is stated by the Apex Court to "represent the collective cause of the community' and delay occurs 'on account of an impersonal machinery' of employees of the State who are not directly hit or hurt by the impugned judgment. That reasoning cannot be applicable to an appeal filed by an individual like the appellant.
5. In this respect on behalf of the respondent bank reliance is placed on the judgment of the Bombay High Court in the case of Shri David K.N.v. Shri S.R. Chaubey (Chaturvedi) 2003(3) All M.R. 511. That was a case where a registered letter sending notice to the addressee was returned with the remark 'unclaimed'. Relying on the judgments of the Apex Court in the case of Madan and Co. v. Wazir Javir Chand , and in the case of Basant Singh v. Roman Catholic Mission , it was held that in such a case presumption would be applicable that the notice was served on the party. In Basant Singh's case the summons were sent by registered post on the correct address of the addressee and the defendant did not lead evidence to rebut the presumption with regard to the service of summons and, therefore, it was held that the defendant had failed to discharge the onus cast upon him by the statute. In the present case also similar situation obtains.
The summons were sent on the address of the appellant which had returned with an endorsement 'unclaimed'. It is not the case of the appellant that he was not residing at the said address at the relevant time when the summons were returned with the postal endorsement 'unclaimed'. The presumption would be rebutted only when it is shown that the appellant was not residing at the relevant time at that address and, therefore, he could not have received the letter or subsequently claimed the same.
6. However, on behalf of the appellant reliance is placed on another judgment of the Apex Court in the case of Sushil Kumar Sabharwal v.Gurpreet Singh , in which the summons were sought to be served personally on the defendant by the process server but he had not obtained signatures of the witnesses about the refusal of the service of summons by the defendant nor the copy of the summons was pasted on the address of the defendant and, therefore, the Supreme Court held that there was no proper service on the defendant as it was shown that the shop of the defendant was situated in a locality where there were other shops and houses and, therefore, the endorsement that no witness was available on the spot to obtain signature to prove the refusal by the defendant was not believed. The ratio of the above decision will not be applicable to the present case as the facts are different in this case. As stated earlier, in the present case the appellant has not made any attempt to rebut the presumption of service.
7. Even if it is assumed that there was no proper service on the appellant it is not in dispute that the true copy of the impugned judgment and order was served on the appellant on 25th July, 2005. If the service of summons is not proved then the limitation would begin to run from the date of the knowledge of the defendant about passing of the decree against him. Therefore, assuming that summons were not served on the appellant in this matter, the limitation would then commence from 25th July, 2005. Time limit for filing the application for setting aside the ex parte decree is 30 days. The appellant has tried to explain the delay by stating in para 4(B) of the application that there was delay of 16 days in filing the application and the same may be condoned in the interest of justice. No reason has been given why there was delay in filing the application. Secondly, even assuming that in this case limitation commenced from 25th July, 2005 i.e. from the date of the knowledge of the defendant about passing of the decree then the delay would not be of 16 days as stated but it would be of 54 days. Yet in the application it is mentioned by the appellant that the delay is of only 16 days and no cause is shown for the delay. What is stated is that delay may be condoned in the interest of justice. Thus, no cause has been shown, much less sufficient cause, why delay of even 16 days, leave alone the actual delay of 54 days occurred from the date of the knowledge of the decree.
8. In para 4(B) of the application it is stated that copies of the recovery proceeding were received by the appellant on 11th September, 2005. It is thereafter that the appellant took the inspection of the proceeding on 19th September, 2005. On this basis the Advocate appearing for the appellant boldly argued that from 19th September, 2005 the application filed on 18th October, 2005 is in time meaning thereby, according to him, the period of limitation began to run from the date on which the appellant took inspection of the original proceeding as if that was the date of knowledge of passing of the decree against him and not from 25th July, 2005 when the true copy of the judgment of the Trial Court was admittedly received by the appellant. Thus, his argument runs counter to the averments made in the application. There is, therefore, absolutely no reason given nor any attempt made to explain why the aforesaid delay had taken place for filing the application. It only shows that the appellant had no sufficient cause to explain the delay and, therefore, a vague statement was made in the application.
9. From the contents of the said para 4(B) in the application one can only draw an inference and arrive at the conclusion that after receiving the copy of the impugned judgment and the order the appellant was not inclined to file the application for setting aside the ex parte decree but the thought of filing the application only with a view to delay or prevent the execution proceeding because admittedly the notice of execution was served on him on 11th September, 2005 and thereafter he engaged an Advocate who took the inspection on 19th September, 2005 and then filed the application on 18th October, 2005. If he had really wanted to challenge the decree he would have moved immediately after the service of the copy of the judgment and order on him on 25th July, 2005. From the aforesaid facts it is obvious that the delay had occurred on account of culpable negligence and the application was filed with a view to delay the execution proceeding.
10. It is well settled that condonation of delay is not an empty formality but the appellant has to explain the delay by showing, sufficient cause. In this respect reference can be made to the judgment of the Supreme Court in the case of P.K. Ramchandran v. State of Kerala , wherein it has been held that explanation for the delay should be reasonable or satisfactory which is an essential pre-requisite to condonation of delay.
11. From what has been stated hereinabove it is crystal clear that in the instant case no attempt has been made by the appellant to explain the delay except by stating that the inspection was taken of the original proceeding by the appellant's Advocate on 19th September, 2005 and the delay in filing the application may be condoned in the interest of justice.
12. No doubt the application for condonation of delay has to be considered liberally by the Court but that does not mean that the delay has to be or can be condoned as a matter of course or right without there being proper explanation in the application. It has to be stated that the application for setting aside the ex parte decree seems to have been made in this case not bona fide but on account of mala fide intention to delay the execution proceeding. If the appellant had bona fide desire to challenge the decree he would have moved in the matter immediately after receipt of the copy of the impugned judgment and order on 25th July, 2005 but he started the move only after the receipt of notice in execution proceeding.
In the aforesaid circumstances, I see no reason to interfere in the impugned order.