GOPAL LUKHARIA Vs. PRAXAIR INDIA LIMITED

JUDGEMENT

(1.) This is an application basically under Order 9 Rule 13 of the Code of Civil Procedure along with various other reliefs. This application has been made by the pen of Personnel Manager (East) and constituted attorney of the company on 5th September, 2000 for the purpose of recalling the decree dated 12th January, 2000 in C.S. No. 430 of 1999 (Gopal Lukharia v. Praxair India Limited). In the instant application the defendant/petitioner also prayed for various reliefs in connection with the execution application arising out of decree being G.A. No. 1859 of 2000.

(2.) It is pertinent to mention here that the application was admittedly made out of time prescribed under Article 123 of the Limitation Act, 1963. Article 123 of the Limitation Act says that a period of thirty days is fixed for such application which will be counted from the date of the decree or where the writ summons or notice was not duly served when the applicant have knowledge of the decree. It appears that both the parts are distinctive from each other. From the facts narrated by the defendants/petitioner it appear not only the writ of summons was served but the defendant/petitioner company entered into appearance through their respective solicitors/advocates firm on 5th October, 1999. Therefore, under no stretch of imagination it can be construed that writ of summons or notice was not served upon the defendant so that they can apply for recalling or setting aside the decree on the date of their knowledge of the decree. Thus, it is crystal clear that thirty days period is specific for such application from the date of the decree which already expired.

(3.) However, following the Original Side Rules prayer for condonation of delay is made in the instant application instead of making it separately unlike the procedure available elsewhere. Therefore, Court is duty bound to hear out the explanation for condonation of delay. Section 5 of the Limitation Act, 1963 says that an application may be admitted after the prescribed period if the Court is satisfied that there is sufficient cause for not making the application within such period. Therefore, such expression will definitely come out from the averments made in the petition. I find from the paragraph 10 of the petition that the petitioner entered into appearance on 5th October, 1999 but no step was taken from then till 15th November, 1999 due to the Puja vacation admittedly. The petitioner contacted with the advocates on record and the advocates on record advised to supply him necessary papers, documents for the purpose of preparation of written statement. It is further contended that some of the papers and documents were supplied in second week of November, 1999 but upon going through the same it was advised to produce further documents to make a complete defence. Certain other explanations are given for collection of papers from different places and also conversion of the company from the nature of the private limited to the nature of the public limited etc. as well as replacement of Vice President (Finance) in January, 2000. According to me, the explanation as yet given is self-contradictory in nature since in one hand the petitioner has stated that he has contacted with the advocates on record after opening of the Court on 15th November, 1999 but on the other hand, he has stated that the certain papers and documents relating to the case was made available to the advocates on record in the second week of November, 1999. I fail to appreciate as to why no step has been taken till such time by the petitioner, being a company controlled by the persons having legal knowledge and backed by the well-equipped solicitors/advocates firm by taking out any application for extension of time to file written statement of that score. It is immaterial for the Court to give any concession at this belated stage to consider all the explanations for having relevant documents for the purpose of taking defence or not. These are, at best, can be the explanations in an application before the Court of Law for the purpose of getting time to file the written statement. Therefore, such explanations in addition to the contradictory statement as given above cannot be a cogent ground for the purpose of recalling or setting aside the exparte decree by condoning the delay.