GUJARAT MACHINE TOOLS INDUSTRIES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicants were defendants Nos. 1 3 and 6. They have filed an application under sec. 4 of the Limitation Act for condoning delay of 147 days in filing the First Appeal. The State Bank of Saurashtra had laid action in the Court below against the defendants for recovery of a sum of Rs. 1 88 682 ps. and the Court below passed a decree in favour of the Bank for Rs 1 73 59 ps. with interest thereon at 9 per cent per annum from the date of the suit till date of payment. It is against that decree that the present appeal is sought to be filed by making an application for condonation of delay of 147 days. Defendant No. 1 Messrs. Gujarat Machine Tools Industries is a partnership firm and applicants Nos. 2 and 3 along with some others who have since retired were its partners. The reason given by the applicants in their application for condonation of delay for not filing the appeal in time is that the Managing Partner applicant No. 2 was keeping indifferent health by the end of December 1975 and from January 1976 due to chronic anaemia and weakness and therefore he could not give instructions to his advocate in time to file the appeal. It is the case of the applicants that after the judgment and decree were ready for delivery the second appellant could not contact its local advocate to get those copies as he was confined to bed and could not move out of the house on account of chronic anaemia and weakness. When he contacted his advocate he was informed that the copies were ready for delivery long time back and therefore he immediately obtained 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 reasons 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. Kanjibhai v. Patel (applicant) is suffering from Fever Malaria Anaemia and weakness off and on during 25-1-76 to 28-6-76. According to the Doctor Ravjibhai used to come to him on different occa- sions between 28th January 1976 and 28th June 1976 and I had prescribed medicines to Ravjibhai for malaria and anaemia. In answer to the questions put by the Court this Doctor admitted that he does not maintain regular books of accounts though he claimed to maintain a diary. He did not maintain a receipt book on the ground that there is 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 case papers. According to him Ravjibhai came to him on 4 to 5 different occasions within a period of six months from January 1976 to June 1976 His major complaint was anaemia. He had not made any diagnosis of his anaemia by blood-test or by any pathological test. According to him Malaria is generally treated with three doses unless there is relapse. Ravjibhai 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 be would require the certificate to be produced in Court I would have not issued the same ....I would ordinarily never give the certificate but because 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 Ravjibhai 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 January 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 borne 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 brother 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 sec. 5 of the Limitation Act has to be liberally construed but the applicant has also to satisfy the Court that he had sufficient cause for not preferring the appeal within the period of limitation.