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Gujarat Machine Tools Industries and ors. Vs. State Bank of Saurashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberCivil Appln. No. 2876 of 1976 and F.A.S. No. 8292 of 1976
Judge
Reported inAIR1978Guj91; (1978)0GLR385
ActsLimitation Act, 1963 - Sections 5
AppellantGujarat Machine Tools Industries and ors.
RespondentState Bank of Saurashtra and ors.
Appellant Advocate S.B. Maimudar, Adv.
Respondent Advocate K.C. Shah, Adv.
Cases ReferredBombay Port v. Premier Automobiles
Excerpt:
.....that he suffered from anemia which disabled him from contacting his advocate not trustworthy - no sufficient cause shown by appellant for condoning delay of 147 days - application dismissed. - - premier autondobiles, air 1974 sc 923 that 'public bodies should resist the temptatios' to take technical pleas7 like limitation. chattappan, (1890) i-lr 13 mad 269 where the learned judges said that 'section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well qnderstood; justice'.in trustees but marginally unjust narrow limitation'.8. the question here is, whether a public body like the state bank of saurashtra had taken technical pleas to defeat an honest..........the ground that 'there -19 no practice to give receipt for the fees charged'. he admitted that the applicant ravjibhai was not bedridden and he was not suffering from fever. he was able to move about. when cross-examined he admitted that he has not got a 'case register' and no serial numbers are given to 'ewe papers'. according to him, ravjibhai came to him on -4 to 5 different occasions' within a period of six months from jan. 1976 to june 1976. his major complaint was anemia. he had not made any diagnosis of his anemia by blood-test or by any pathological test, according to him, malaria is generally treated with three doses unless there is relapse. ra4bhai used to come to him personally to take treatment from him. he however. made a very glaring and a very significant admission......
Judgment:

Obul Reddi, C.J.

1. The applicants were defendants Nes. I,Sand& They bave filed an application under S. 4 of the IAmitation Act for condoning delay oi 147 days in filing the ftst Appeal. The Sftft Bank of Saurashtra had laid action in the Court below against the defendauft for recovery of a sum of Rs. 1,88,682-08 ps. and the Court below passed a decree in favour of the Bank for Its. 1,73,259-58 ps. with interest thereon at 9 per cent Per annum from the date of the suit till date of payment~ R is agonst that decree that the present appeal is sought ta, be filed by makin an application foir am. donation. of delay of 147 days. Defendant No. 1, Messrs Gx4arat Machine Tools Industries, is a partnership firm and applicants Nos. 2 and a along with some, others who have sweep retired were ift partners. The reason given by the applicaub in their ap. plication for condonation, of delay for not filing the appeal in time is that the Mane Dig Partner, applicaixt No. 2. 'was keeping indifferent health by the end of I)m 1975 and from Jan. 1976 due to dhronb.'.'6x~ and weaknessr at4 tbmAx% he oJiuld no give instructions to his advocate tu'dime to, file the appeaL It Is ft one al do appitcan that: after the ludxod.# aind decree were ready for delivery, the second appellant could not contact its local advocate to get those copies as he was conflaed to bed and could not move out of the houn on aommt of chronic anemia and weakness. When he _x contacted his advocate he was bulorined max the copies were ready for delivery lojig time back aD& therefore, be immecUely obtainad the copies from the advocate and rushed to Ahmedabad to file the appeal, which he filed on June 29, 1976. It is, therefore, his case that the delay of 147 days is due to 'sufficient reasonC'and that delay merits to be condoned.

2. This application is opposed by the respondent No. 1, State Bank of Saurashtra. As the respondent No. 1 Bank did not admit the alleged illness of the applicant No. 2, the applicant examined the Private Medical Practitioner, Dr. Ramakant H. Shah who had treated him during the period when he was said to be ill.

3. Dr. Ramakant Shah, as may be seen from his evidence, is a General Medical practitioner for the last thirty years and has been the family Doctor'of the second applicant. He issued the following medical certificate on June 30, 1976 to the second applicant stating-

'This is to certify that Mr. Raojibhal V. Patel (applicant) is suffering from Fever, Malaria, Anemia and weakness off and on during 25-1-1976 to 28-6-1976.'

According, to the Doctor, Ravjibhaf used to come to him 'on different occasions between 28th Jan. 1976 and 28th June 1976 and 'I had prescribed medicines to Ravjibhai for Malaria and anemia7. In answer to the questions put by the Court, this Doctor admitted that he does not maintain regular books of accounts though he claimed t6 maintain a diary. He did not maintain a receipt book on the ground that 'there -19 no practice to give receipt for the fees charged'. He admitted that the Applicant Ravjibhai was not bedridden and he was not suffering from fever. He was able to move about. When cross-examined he admitted that he has not got a 'case register' and no serial numbers are given to 'ewe papers'. According to him, Ravjibhai came to him on -4 to 5 different occasions' within a period of six months from Jan. 1976 to June 1976. His major complaint was anemia. He had not made any diagnosis of his anemia by blood-test or by any pathological test, According to him, Malaria is generally treated with three doses unless there is relapse. Ra4bhai used to come to him personally to take treatment from him. He however. made a very glaring and a very significant admission. 'Ravjibhai told me that he' required the certificate for use in his factory and had he told me that he would require the certificate to be produced In Court, I would have not issued the same I would orftarlly,:~neoer give the certificate but be cause of my special relations with Ravjibhai I gave the certificate'. ' It is manifest from the evidence of the Doctor who is said to have treated Ravjibbai that because of the false representations made by Ravjibhai viz., a certificate was needed for use in the factory that he obliged him with this medical certificate. We are inclined to hold, having regard to the evidence of the Private Medical Practitioner, that Ravjibhai during the period between Jan. 25, 1976 and June 28, 1976 did not suffer from any illness which prevented him from contacting his advocate and obtaining the certified copies of the judgment and decree which his advocate had already obtained from the Court. It should be home in mind that apart from applicant Ravjibhai Patel there were other partners and applicant No. 3, his younger brother, was also living with him at the Industrial Estate. It may be that applicant No. 2 was the Managing Partner but there was his younger ther who could have attended to the work of instructing his advocate. The delay is not of a few days or a couple of weeks but 147 days, which has to be satisfactorily explained. It is true that an application under Section 5 of the Urnitation Act has to be liberally construed but the applicant has also to satisfy the Court that he had 'mfflcient cause~ for not preferring the appeal within the period of limitation.

4. Mr. Maimudar appearing for the appellants invited our attention to two decisions of this Court to contend that it is not necessary that each day's delay should be meticulously explained and that the Court should not 'adopt the approach of a school master who uses his rod to discipline the stadents'. In Karim Abdulla v. B. Hoorbai, (1975) 16 Guj LR 835, our learned brother Thakkar J., while following the rulings of the Supreme Court in Ramlal v. Rewa Coalfields, AIR 1962 SC 361 and State of West Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749 laid down certain guidelines some of which, in our opinion, are of wider amplitude than the guidelines indicated by the Supreme Court.

5. Another single judge of this Court P. D. Desai 1. in Hiraben v. Ishwarbharti (1977) 18 Guj LR 467 : (AIR 1977 Gul 146), followed the view expressed by the Supreme Court in Trustees, Bombay Port v. Premier Autondobiles, AIR 1974 SC 923 that 'public bodies should resist the temptatios' to take technical pleas7 like limitation.

6. We are bound to follow the view expressed by the Supreme Court from time to time and the guidelines laid down by it when the question of condorlation of delay comes up for consideration. The Supreme Court had occasion to review its own earlier decisions as also the decisions of High Courts while construing the expression 'sufficient cause~' occurring in Section 5 of the Limitation Act in State of West Bengal v. Howrah Municipality (AIR 1972 SC 749) (supra). There the learned judges quoted with approval the view of the Madras High Court in Krishna v. Chattappan, (1890) I-LR 13 Mad 269 where the learned judges said that 'Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well qnderstood; the words 'sufficient cauW receiving a liberal construction so as to advance substantial justice when no negligence nor maction nor want of bona fide is imputable to the appellant'.

7. In an earlier case, Ramlal v. Rewa Coalfields Ltd., (AIR 1962 SC 361), which was also referred to by Thakkar J., the Supreme Court observed (at p. 363):

'In construing S. 5 it is relevant to in mind two imnortant considerations. first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be lightheartedly disturbed'.

The Supreme Court, however, made it clear in that case that 'other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should bp exercised to advance subBombay Port v. Premier Automobiles (AIR 1974 SC 923) (supra), the Supreme Court has expressed the view that 'public bodies should resist the temptation to take technical pleas or defeat honest claims by legally permissible contentions, including stantial. justice'. In Trustees but marginally unjust narrow limitation'.

8. The question here is, whether a public body like the State Bank of Saurashtra had taken technical pleas to defeat an honest claim which is legally permissible. No hard and fast line can be drawn as to what affords 'sufficient cause' in a given case. V%7bether 'sufficient cause' is shown or not depends upon the facts of each case. On his own showing the second applicant was not bed-ridden. His Doctor said that during the period of five months between Jan. 25, 1976 and June 28,,1976 he had visited him on1v on four or five occasions and the, disease from which he was suffering was anemia which did not prevent him from looking after his routine duties as a Managing Partner, It is not a case where a person was admitted as an inpatient in a hospital or a Nursing Home or where he had undergone an operation or where the Doctor advised bedrest. Apart from all that, the appellant's conscience did not seem to prick him when he made a false statement to his Doctor that he required the certificate for use in the factory. He knew fully well that his Doctor would not give him a certificate for an illness from which he bad not suffered if only he had told him that the certificate was bear meant to be filed in the Court. The application cannot, therefore, be said to be a bonafide one made to advance the cause of jus tice. There is also nothing on record to show that during the period between I Jan. and June 1976 anybody other than himself was discharging the functions of the Managing Partner. We are, therefore, unable to place any credence on the story trotted on by him that be suffered from anemia which disabled him from even contacting his advocate. No affidavit of the advocate has also been filed to show on what date be contact ed him for obtaining the certified copies of the judgment and decree. We, therefore, 'un hesitatingly hold that the delay has not been satisfactorily accounted for. Whatever liberal interpretation we may try to put on the words 'sufficient cause', it would be impossible for us, having regard to the facts of this case, to bold that there is no negligence or inaction or want of bona fides on the part of the applicants. From the above discussion it is manifest that no 'sufficient cause' has been shown by the applicants for condoning the delay of 147 days in this case.

9. This application is accordingly dismissed, Rule is discharged. No costs. Registration of the appeal is refused.

10. Application dismissed.


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