JUDGMENT JUSTICE J.M. MAILK, CHAIRPERSON.--Thelearned D.R.T. passed an exparte order dated 28th August, 2002. The recall application moved by the appellants on 14th May, 2003 was dismissed vide impugned order dated 16th May, 2006. Aggrieved by that order the appellants have preferred the instant appeal. 2. The following facts emanate from the record. The case in question got transferred from the learned D.R.T., Jabalpur and came up for hearing before the learned D.R.T., Allahabad on 20th December, 2000. It was adjourned to 18th October, 2001. On the same day Shri A.P. Singh, Advocate appeared on behalf of all the defendants-appellants. The case was fixed for filing reply along with evidence on 28th December, 2001. From 28th December, 2001 it was adjourned to 25th January, 2002. On 25th January, 2002 Shri A.P. Singh, Advocate filed his vakalatnama for all the defendants. The case was adjourned to 19th February, 2002, 19th March, 2002 and 21st May, 2002. On 21st May, 2002 none appeared for the appellants and as. such they were proceeded against ex-parte. The case was fixed for ex-parte arguments on 26th August, 2002. On 26th August, 2002 ex-parte arguments were heard and the ex-parte judgment was announced on 28th August, 2002. 3. I have heard the Counsel for the parties. Learned Counsel for the appellant made four submissions. The first submission made by the Counsel for the appellant was that Dr. Narayan Ray, appellant No.2, remained sick and was unable to attend the Court proceedings. In order to embolden his case, Counsel for the appellant has invited my attention towards the medical certificate dated 19th August, 2002 adduced before the learned D.R.T. The certificate is reproduced as under :- "This is to certify that Mr. Narain Ray, S/o Shri P.K. Ray, r/o C179/178, Shastri Nagar, Betiahata, Gorakhpur, U.P. is under my treatment from 12th February, 2002. He is suffering from Osteoarthritis and advised to take complete bed rest for about one year w.e.f. 12th February, 2002 to 11th February, 2003. It is necessary for his health"; 4. Narain Ray, S/o Shri P.K. Ray, r/o C179/178, Shastri Nagar, Betiahata, Gorakhpur, U.P. is under my treatment from 12th February, 2002. He is suffering from Osteoarthritis and advised to take complete bed rest for about one year w.e.f. 12th February, 2002 to 11th February, 2003. It is necessary for his health"; 4. There are three other certificates which were placed on record, one issued by Guru Harikishan Hospital showing Serology Test with the result Negative dated 10th December, 2002 and another certificate issued by Servants of the People Society, Delhi branch with the result, "both knees A.P. Let Bilamal Osteoarthritis" and last certificate issued by Charitable Medical Clinic, Servants of the People Society, New Delhi dated 9th February, 2002. 5. It is pertinent to note that there is no evidence that the appellant was never admitted in any hospital and secondly, he got his treatment at New Delhi. 6. The learned advocate vehemently argued that the appellant was not in a position to attend the Court due to sickness. 7. The second connected submission made by the learned Counsel for the appellants was that the appellant No.2 tried to contact his Counsel and wrote letters dated 26th November, 2001, 20th February, 2002, 25th March, 2002 and 5th April, 2002 but did not get any response from his advocate. These letters was sent under U.P.C.; one letter was sent under registered post as it appears from the letter itself, but no registered A.D. Card or postal receipt saw the light of the day. The copies of this letter are type written in English Language, which go to depict that the appellant is an educated person. 8. In support of his case the learned Counsel for the appellant has submitted two authorities, first is in Rafiq v. Munsilal,1 wherein it was held that party should not suffer for misdemeanour or inaction of his Counsel. It was observed- 1. AIR 1981 SC 1400 . "As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi." 9. AIR 1981 SC 1400 . "As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi." 9. The learned Counsel for the appellant also drew the attention of this Court in another authority supported in Rabindra Singh v. Financial Commissioner, Co-operation, Punjab2. The facts of this case are entirely different. In this case there was no service upon the respondent. The defendant was living in America for the last about 25 years. He was served through substituted service. He was not staying at the last known place. Notice to that appellant was served by way of substituted service only. 2. (2008) 7 SCC 663 . 10. In the instant case, the Counsel for the appellants had appeared for the appellant time and again. He was given as many as five opportunities to file reply. He was well aware of the proceedings since 18th October, 2001 when his Counsel appeared before the learned Presiding Officer. From 18th October, 2001 to 14th May, 2003 neither he appeared before the Court nor his Counsel, who, though appeared before the Court previously to take the dates only for 23 times, but did not take any effort to pursue the case. The appellant is a resident of Gorakhpur which is situated at a distance of 200 Kms. away from Allahabad. Counsel for the appellant admitted that he has got telephone and so has his Counsel Shri A.P. Singh. Even if it is assumed that his Counsel was not responding to the letters sent by him, he should have been more vigilant and active and should have gone to Allahabad. Evidence produced by appellants clearly goes to show that the appellant No.2 used to visit Delhi time and again and was not suffering from any serious problem. 11. No explanation and affidavit of Shri A.P. Singh saw the light of the day. Under these circumstances, the argument urged by the Counsel for the bank that they may have been working in cahoots with each other assumes importance. 12. It is well settled that a claimant is expected to be prompt and vigilant in pursuing his cause. 11. No explanation and affidavit of Shri A.P. Singh saw the light of the day. Under these circumstances, the argument urged by the Counsel for the bank that they may have been working in cahoots with each other assumes importance. 12. It is well settled that a claimant is expected to be prompt and vigilant in pursuing his cause. Therefore it all depends upon circumstances of a case, where the cause advanced by the party can be said to be really beyond its control preventing him from approaching Tribunal within the time prescribed, Courts take a liberal view and condone the delay but where it is found that a party condoned lacks in bona fide, he must suffer from his inaction. If it is found that the appellant behaves in a totally negligent, reckless or erratic manner in not pursuing his case, the application for condonation of delay should not be accepted. The appellant cannot just sit at home quietly and act at leisure. Duties of the advocate as well as the litigants are different. In case the advocate does not take interest, it is the duty of the litigant to make an enquiry and should not sleep over his right for a sufficient time. 13. The Apex Court in an authority in N. Balakrishnan v. M. Krishnamurthy1, was pleased to hold :- 1. AIR 1988 SC 3222. "13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or if it is not put forth as part of a dilatory strategy the Court must show utmost consideration of to the suitor. But where there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation." 14. For the purpose of condonation of delay, there must be some cause which can be termed as "sufficient cause". Condonation of delay cannot be allowed only because the delay is unintentional and there are sufficient attending circumstances to bolster up the same. For the purpose of condonation of delay, there must be some cause which can be termed as "sufficient cause". Condonation of delay cannot be allowed only because the delay is unintentional and there are sufficient attending circumstances to bolster up the same. Crux of the problem is as to whether there is some plausible and reasonable explanation given by the appellant in his application for the condonation of delay caused in preferring the appeal and that the impugned order is liable to be interfered with on the ground that it is perverse or patently erroneous. There should be some extenuating circumstances justifying the condonation of delay under section 5 of the Limitation Act. In a recent case in Sow Kamalbai w/o Narasaiyya Shrimal and Narsaiyya s/o Sayanna Shrimal v. Ganpat S/o Vithalrao Gavare,2 it was held :- 2. 2007 (1) Mh LJ 807. "15. The expression "sufficient cause" cannot be erased from section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of section 5 of the Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such "sufficient cause" stated in the application and as such no interference in the impugned order is called for." 15. From the above said record, it is apparent that the appellants were grossly negligent about this case. 16. Again, the law is clear on these points. It stands established that the appellant were aware of the pendency of the case against them. The Apex Court in the recent authority in Sunil Poddar v. Union Bank of India3 was pleased to hold :- 3. 2008 (71) ALR 312 (SC)=2008 (64) AIC 166 (SC). "Accepting the recommendations of the Law Commission, the rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order IX with effect from 1st February, 1977 now reads thus: "13. 2008 (71) ALR 312 (SC)=2008 (64) AIC 166 (SC). "Accepting the recommendations of the Law Commission, the rule was amended by the Code of Civil Procedure (Amendment) Act, 1976. Rule 13 of Order IX with effect from 1st February, 1977 now reads thus: "13. Setting aside ex parte against defendant.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit : Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal had been disposed off on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. (Emphasis supplied)" 19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff(s) claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13, Order IX of the Code. Since the said provision applies to D.R.Ts. and Appellate Tribunals under the Act in view of section 22 (2) (g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the D.R.T.; they had no sufficient time to appear and answer the claim of the plaintiff-bank and on the ground, ex parte order deserves to be set aside." 17. In the case of Ram Lal v. Rewa Caolfields Ltd.,1 the Supreme Court has held as under:- 1. AIR 1962 SC 361 . "It is, however, necessary to emphasize that eyen after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter or right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by section 5. If sufficient cause is not proved nothing further has to be done, the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduce the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fide may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it." 18. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it." 18. In G. Ramegowda v. Special Land Acquisition Officer,2 wherein it was held that it is true, there is no general principle saving the party from all mistakes of its Counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its Counsel, there is no reason why the opposite party could be exposed to a time barred appeal. 2. AIR 1988 SC 897 . 19. In State of U.P. v. Prabha Chandra,1 it was held that where the appeal was filed beyond 1 year and 108 days of prescribed period of limitation, by condoning inordinate delay, which had not been explained at all as required in law, Court shall be helping appellant to cause grave miscarriage of justice. Court was to find out whether party praying for condonation of delay had been sleeping over, grossly careless, apt, negligent and/ or trying to abuse process of law and real attempt was to harass opposite party. Held, that law of limitation is creation of legislature and enshrined in statute. No sacrosanct immunity to State and its officers from provisions of Limitation Act. Hence, appeal filed was time-barred. 1. (2003) II ACC 580 (All.) (DB). 20. See the authorities by the Apex Court Warlu v. Gangotribari,2 ann Ranjubai v. Sunderbai3; 2. AIR 1994 SC 466 . 3 AIR 1965 SC 1794 . 21. Punjab and Haryana High Court in case of Ajita Sharma v. Rakesh Kumar Sharma4 held :- 4. 1999 (1) CCC 363 (P&H). "A person knows about a pending case and still ignores the said litigation, it would be wholly unfair for that person to urge that he had not been formally served." 22. Same view was take by Chairperson, D.R.A.T., Delhi in case in Inrays v. State Bank of India.5 5. (2008) 1 BC 67. 23. In a recent authority in Pundik falam Patil (D) by LRs. v. Executive Engineer Jalgaon Medium Project and another, decided on 3rd November, 2008 in case No. Civil Appeal No. 6414 of 2008, 2008 A.I.O.L. 1219 it was held that the settled rights cannot be rightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. v. Executive Engineer Jalgaon Medium Project and another, decided on 3rd November, 2008 in case No. Civil Appeal No. 6414 of 2008, 2008 A.I.O.L. 1219 it was held that the settled rights cannot be rightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. In this case, the Apex Court further held that Hon'ble High Court gravely erred and exercised its discretion to condone the inordinate delay of 1724 days though no sufficient cause has been shown by the applicant. 24. The Supreme Court in the case in S.P. Chengalvaraya Naidu (D) by L.Rs. v. Jagannath (D) by L.Rs.,6 was of the view :- 6. AIR 1994 SC 853 . "The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with dean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient leave to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation?" 25. Similar view was taken by Apex Court in a recent authority as Prestige Lights Ltd. v. State Bank of India.7 7 (2007) 8 SCC 449 . 26. The next submission made by the Counsel for the appellant was that the requirement of law is that every order passed on an application shall be communicated to the applicant and to the defendant either in person or by registered post free of cost as per Rule 16 of the Debts Recovery Tribunal (Procedure) Rules, 1993. 27. It must be borne in mind that Rule 16 of the Debts Recovery Tribunal (Procedure) Rules, 1993 is not a mandatory provision of law. This is a precautionary step to be taken by the registry. It appears to be a clerical mistake. 27. It must be borne in mind that Rule 16 of the Debts Recovery Tribunal (Procedure) Rules, 1993 is not a mandatory provision of law. This is a precautionary step to be taken by the registry. It appears to be a clerical mistake. It must be borne in mind that the appellant did not appear before the Court from 18th October, 2001 to 28th August, 2002. He did not appear before the Court on his own. When a person does not appear before the Court and shows the negligence that he does not care whether he gets the response from his advocate, then he must know the fate of his case. There is no evidence that prejudice was caused to the appellant. Even if it is assumed that he was communicated in time, even then there is no explanation for the delay, which was caused from 18th October, 2001 to 28th August, 2002, when ex-parte decree was passed. That period is crucial for which no explanation is forthcoming. The appellants remained absent for a period of more than 300 days. Consequently, the non-compliance of the Rule 16 which appears to be an omission due to inadvertence on part of the registry does not cut much ice. However, the Registry of all three D.R.Ts. situated at Lucknow, Allahabad and Jabalpur are hereby directed to adhere to the provision of Rule 16 strictly. Any complaint made by any of the advocates will be seriously taken up by the undersigned and invite departmental action. Copy of this order be sent to all the Registrar of three D.R.Ts. 28. The last submission made by the Counsel for the appellant was that the house in question has already been sold on a lower rate. He cannot challenge the said auction until and unless the ex parte order was set aside. He, however, argued that although, the appellants had taken the loan in question, but the appellants have filed counter-claim and nothing is due to the appellants. On the contrary he has already claimed compensation from the bank. 29. At this stage we are not concerned with this issue. The Court is bound to restrict itself to the issues involved herein. In Zeron Electronics v. State Bank of India,1 D.R.A.T., Chennai was dealing with a similar problem. On the contrary he has already claimed compensation from the bank. 29. At this stage we are not concerned with this issue. The Court is bound to restrict itself to the issues involved herein. In Zeron Electronics v. State Bank of India,1 D.R.A.T., Chennai was dealing with a similar problem. After dismissal of M.A. through impugned order dated 16th May, 2006, the learned Recovery Officer proceeded with the recovery proceeding in accordance with the powers conferred under the provision of R.D.D.B.F.I. Act, 1993 and the auction of one property, which was sold on 13th September, 2007. The sale was confirmed on 15th October, 2007 and the purchaser started enjoying the property since 15th October, 2007. The appellants never challenged the auction sale till date before the appropriate authority nor challenged the auction sale till date. It was held that now properties have already been sold out and third party interest has been created and it is stated that auction purchaser also had taken possession of properties and, therefore, the prejudice that would be caused to the auction purchaser would weigh more than the appellants. 30. It is made clear that the appellants were grossly negligent in pursuing his case. It is apparent that he is an educated person. He must have known the fate of his case, when he was aware that since he did not file reply for last so many months, i.e., around more than a year and his advocate did not care to respond to his letters, therefore, it was obvious that his case will be proceeded against ex parte. The appeal has no merit and, therefore, the same is dismissed. 1. (2007) 1 BC 128. 31. Copy of this judgment be furnished to the parties as per law and another copy of the same be also dispatched to the learned D.R.T. forthwith. Appeal Dismissed.