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2017 DIGILAW 1571 (GAU)

ICICI Bank Ltd. v. Bimla Devi Jajodia

2017-12-22

PRASANTA KUMAR DEKA

body2017
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. GN Shahewalla, learned senior counsel, assisted by Mr. R. De, learned counsel, appearing on behalf of the petitioner. Also heard Mr. AK Purakayastha, learned counsel, appearing for the respondent. Started with enthusiasm, grit and resolute with firmness in its belief that an execution process initiated for execution of a lawfully passed decree by the competent civil court, would take the petitioner-judgment debtor without any bumpy ride driving within the arena of the Executing Court without even satisfying the decree had backfired by driving the petitioner into a well of unfathomable depth and in order to rescue the said petitioner from the said well this is the effort. In order to explain such comparison, this court has to take note of the facts and figures on record in the form of petition supported by affidavit and the affidavit-in-opposition by the respondent in this delay condonation petition filed by petitioner for condonation of 1053 days delay in filing the connected Second Appeal against the judgment and decree dated 28.05.2011 passed in T.A. No. 170/2010 learned Civil Judge No. 2, Kamrup (Metro), Guwahati. The present petitioner, ICICI Bank Ltd. who is the defendant in Title Suit No. 280/2006 in the court of the learned Munsiff No. 3, Kamrup (Metro), Guwahati, was filed by the respondent, as the plaintiff. The respondent is a business lady and requires vehicles to carry goods. Accordingly she intended to purchase a vehicle and the present petitioner through its Branch at Bhangagarh, G.S. Road, Guwahati extended a loan of Rs. 2,70,000.00 to the respondent to purchase a vehicle, which was purchased on 26.2.2004. As per the terms and conditions of the Hire Purchase Scheme, the respondent was supposed to repay the loan in 23 equal monthly installments of Rs. 13,102.00. The respondent handed over 23 numbers of postdated cheques to the petitioner, which were drawn on Standard Chartered Grind lays Bank. Some of the cheques were utilized by the petitioner Bank. However, the respondent came to know that the Bank did not encash the cheques pertaining to the installment Nos. 10, 11 and 12 because of the fact that the name of the Standard Chartered Grindlays Bank was changed to Standard Chartered Bank. The petitioner Bank asked the respondent to issue fresh cheques for installment Nos. 10, 11 and 12. However, the respondent came to know that the Bank did not encash the cheques pertaining to the installment Nos. 10, 11 and 12 because of the fact that the name of the Standard Chartered Grindlays Bank was changed to Standard Chartered Bank. The petitioner Bank asked the respondent to issue fresh cheques for installment Nos. 10, 11 and 12. On insistence, the respondent issued three numbers of cheques afresh and instructed the petitioner Bank to encash the remaining cheques. However, the petitioner Bank did not encash the cheques for installment Nos. 13, 14 and 15 and returned the cheques to the respondent. The respondent thereafter issued three cheques afresh. Installment Nos. 16 and 17 fell due and the respondent gave two numbers of fresh cheques against installment Nos. 16 and 17. 2. Likewise, for the installment Nos. 18 and 19, the same episode repeated. The petitioner bank did not come forward as per the practice followed earlier to ask her to issue fresh cheques. The petitioner bank served a notice on the respondent demanding payment of Rs. 39,306.00 being the total dues against installment Nos. 20, 21, 22 and 23. The petitioner bank on 30.1.2006 repossessed the vehicle of the respondent and owing to such repossession by the bank she had to hire vehicles to run her business for which the petitioner sustained loss at the rate of Rs. 1,000.00 per day. Pleading so, the respondent filed a suit praying inter alia for mandatory injunction directing the petitioner bank to return her vehicle and also to return 4 numbers of unused cheques which she handed over to the petitioner as against payment of installment Nos. 20 to 23. It was also prayed for a declaration that the termination of her agreement with the petitioner bank as illegal and void. 3. The present petitioner as the defendant in the suit filed its written statement contesting the claim of the respondent. Referring to the agreement with the respondent, the petitioner bank pointed out that the said agreement stipulated that the borrower is bound to replace the post dated cheques and to issue fresh cheques. The fact of repossession of the vehicle was admitted, however, on the ground of failure of the respondent to pay the loan installment. Amongst various issues framed by the trial court, the Issue No. 10 is reproduced herein below:- "10. The fact of repossession of the vehicle was admitted, however, on the ground of failure of the respondent to pay the loan installment. Amongst various issues framed by the trial court, the Issue No. 10 is reproduced herein below:- "10. Whether the defendant is liable to pay the plaintiff the rent paid by the plaintiff to her services for hiring other vehicle with effect from 30.1.2006 due to illegal custody of the plaintiffs vehicle by the defendant?" 4. The learned trial court vide judgment and decree dated 30.6.2010 decreed the suit partially and held that the acts of issuance of the letter dated 31.1.2006 terminating the agreement and repossession of the suit vehicle by the petitioner defendant are illegal and as such the plaintiff respondent is entitled for restitution of the suit vehicle by delivering its possession to her and cost of the suit. It is pertinent to mention here that the learned trial court decided the issue No. 10 against the plaintiff respondent holding that the relation of the plaintiff/respondent and the petitioner/defendant was contractual and there is no clause with regard to the payment of Rs. 1,000.00 per day as the hiring charge of vehicle in the contract. The decree was prepared as per the judgment with a direction to pay an amount of Rs. 4,815.70 by the petitioner to the plaintiff/respondent as the cost and deliver back the vehicle bearing Registration No. AS 01R 9088, which was repossessed by the petitioner. 5. The decree so passed was put to execution in the Executing Court on 8.10.2010 which was registered as Title Execution Case No. 10/2010. The executing court issued writ whereafter the court officials went to the office of the petitioner Bank and on the basis of the writ asked for the decretal money and the vehicle. As per the report of the bailiff dated 8.12.2010, it is pertinent to mention that the Branch Manager of the Bank informed him that the Legal Manager, Arindam Deka was on leave and would be joining back on 13.12.2010 and as such the Branch Manager was unaware with regard to the location of the decretal vehicle. As per the report of the bailiff dated 8.12.2010, it is pertinent to mention that the Branch Manager of the Bank informed him that the Legal Manager, Arindam Deka was on leave and would be joining back on 13.12.2010 and as such the Branch Manager was unaware with regard to the location of the decretal vehicle. Thereafter, the said bailiff again visited the petitioner bank and as per the report dated 8.1.2011, the bank official informed the bailiff to contact the Head Office of the bank and refused to deliver back the decretal amount and the vehicle as such the bailiff sought for police help for execution of the subsequent writ. 6. On the other hand, the plaintiff/respondent being dissatisfied with the judgment and decree passed by the learned trial court, preferred T.A. No. 107/2010 in the court of the learned Civil Judge No. 2 Kamrup (Metro), Guwahati. The learned first appellate court vide its judgment and decree dated 20.5.2011 set aside the partial decree passed by the trial court and decreed the suit of the plaintiff respondent in full thereby allowing the plaintiff/respondent to recover an amount of Rs. 17,000.00 from the petitioner bank and also decreed that the plaintiff respondent shall be entitled to recover Rs. 1,000.00 per diem from the petitioner bank with effect from the date of filing of the suit until the vehicle of the plaintiff/respondent is redelivered to her by the bank with a further direction to redeliver the vehicle to the respondent immediately alongwith the 4 numbers of cheques. The last date for filing Second Appeal against the judgment and decree dated 20.05.2011 in T.A. No. 107/2010 was 20.8.2011. 7. On the basis of the said decree passed by the first appellate court, the Title Execution Case No. 10/2010 was amended as per the decree passed in T.A. No. 107/2010. It is pertinent to mention here that the petitioner bank appeared and contested the said T.A. No. 107/2010. 7. On the basis of the said decree passed by the first appellate court, the Title Execution Case No. 10/2010 was amended as per the decree passed in T.A. No. 107/2010. It is pertinent to mention here that the petitioner bank appeared and contested the said T.A. No. 107/2010. On the basis of the decree passed subsequently in the first appeal, the writ of attachment was issued against the petitioner bank and on the basis of the said writ, the bailiff went to the office of the bank and on being shown the writ of attachment and for payment of decretal amount, the official of the bank informed the bailiff alongwith a letter dated 15.5.2012 addressed to the learned Executing Court intimating that the bank would appear on 16.5.2012 through its pleader and take proper steps in the said proceeding. On such assurance the bailiff returned the writ with a prayer to the Executing Court for providing police help for the said attachment of the movables of the petitioner bank. Similarly the bailiff visited the bank on 20.6.2012 for execution of the said writ and unable to execute the writ and returned the writ 8. On the other hand, the learned counsel for the petitioner bank appeared before the executing court on 16.5.2012 and sought for time to receive necessary instruction from the petitioner bank. Similar petition on the same ground was filed by the learned counsel, appearing on behalf of the petitioner bank and sought for time on 22.5.2012 and the executing court granted time fixing 21.6.2012. On 21.6.2012 by filing a petition, the petitioner bank informed the Executing Court that a talk of compromise was going on between the parties and as such sought for some time to settle the matter which was accordingly granted by the executing court fixing 20.7.2012. On the next date similar application was filed by the counsel for the petitioner bank informing that the Manager (Legal) of the petitioner bank had gone to Kolkata to attend the meeting which includes in the agenda, the issue at hand. Again vide application dated 24.8.2012 and 27.9.2012 the petitioner bank informed the executing court that the approval of higher authorities is in the final stage for settlement amicably of the claim of the respondent and around 15/20 days would be further required for the same which was objected to by the decree holder (respondent). Again vide application dated 24.8.2012 and 27.9.2012 the petitioner bank informed the executing court that the approval of higher authorities is in the final stage for settlement amicably of the claim of the respondent and around 15/20 days would be further required for the same which was objected to by the decree holder (respondent). On the said date, the learned executing court while passing the order rejecting the said prayer seeking 15/20 days time further, observed that the judgment and decree is well known and within the knowledge of the judgment debtor and under such circumstances, the objection raised by the decree holder (respondent), was justified. Accordingly, 20.10.2012 was fixed for report of execution of the writ of attachment. 9. Thereafter, the executing court issued fresh writ to attach the suit vehicle, to realise an amount of Rs. 17,20,000.00 plus cost and also to attach 4 numbers of cheques from the petitioner bank and return the same to the respondent. On the basis of the said writ the movable properties of the office of the petitioner were attached and were given back on Zimma to the authorized signatory of the bank. The bailiff on 18.10.2012 visited the office of the petitioner bank to execute the writ for realization of the decretal amount against which as apparent from the report, the bank official refused to pay the decretal amount. 10. Thereafter, vide order dated 20.10.2012, the Executing Court directed the attached movable properties for auction sale for realization of the decretal amount in presence of the counsel appearing on behalf of the petitioner bank. The counsel appearing on behalf of the petitioner bank was present on the subsequent dates so fixed by the executing court i.e. on 26.11.2012, 8.1.2013, 4.3.2013, 25.3.2013 and 1.4.2013. In between the proclamation of sale was issued and delivered to the office of the petitioner bank who was Zimmadar (custodian) of the attached properties. Vide order dated 8.5.2013, the proclamation of sale alongwith due notice fixing 24.6.2013 for auction sale of the attached properties was ordered thereby fixing 29.6.2013 for report from the bailiff. 11. The petitioner bank on 29.6.2013 filed an application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) thereby questioning the executability of the decree dated 20.5.2011, passed in T.A. No. 107/2010 alongwith another prayer for recalling the warrant of attachment by the executing court. 11. The petitioner bank on 29.6.2013 filed an application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) thereby questioning the executability of the decree dated 20.5.2011, passed in T.A. No. 107/2010 alongwith another prayer for recalling the warrant of attachment by the executing court. The said application was registered as Misc. (J) Case No. 314/2013 in T.Ex. Case No. 10/2010 in the Executing Court of the learned Munsiff No. 3 Kamrup (Metro) at Guwahati. 12. The respondent as the decree holder filed her written objection with a prayer to reject the said application under Section 47 of the CPC. In the said objection, the respondent raised the plea that the petitioner bank filed such petition only in order to delay the execution proceeding. The learned executing court vide order dated 5.12.2013 dismissed the said application under Section 47 of the CPC. The petitioner bank on 20.1.2014 filed an application before the executing court seeking time to file proper petition before the High Court purportedly challenging the said order. On the said application, the learned executing court stayed the process of execution till the next date, fixing 6.2.2014. Thereafter the petitioner Bank remained absent on 6.2.2014 till 12.6.2014 on various dates fixed by the Executing Court as apparent from the order dated 12.6.2014 wherein it is reflected that steps for auction sale of the attached movables were completed. 13. The petitioner bank having failed to render powerless the decree, in the meantime on 14.7.2014 filed a Second Appeal before this Court against the judgment and decree dated 20.5.2011 passed in T.A. No. 107/2010. However, the said appeal was not registered as there was delay in preferring the same and no petition for condonation of delay was preferred by the petitioner bank alongwith the said second appeal. On the other hand, vide petition dated 26.11.2014, the counsel appearing on behalf of the petitioner Bank sought for stay of the execution process as aforesaid which was initiated afresh on 6.2.2014 on the failure of the petitioner Bank to submit any stay order from the High court. This time the ground taken by the petitioner bank in the said adjournment petition dated 26.11.2014 was that the bank authority agreed to settle the matter on compromise and finally the process for payment had been initiated and as such some reasonable time be granted. This time the ground taken by the petitioner bank in the said adjournment petition dated 26.11.2014 was that the bank authority agreed to settle the matter on compromise and finally the process for payment had been initiated and as such some reasonable time be granted. It would not be out of place to mention that in the delay condonation petition, the petitioner has stated that it was desirous to settle the matter amicably and to that effect a cheque No. 272282 dated 8.1.2013 for an amount of Rs. 4,00,000.00 was issued in favour of the respondent but the same was not acknowledged by her. As against that averment, it is on record of the order sheet of execution proceeding dated 8.1.2013 that on the said date, counsel for the petitioner Bank was present in the Executing Court, but there was no intimation to the said Executing Court with respect to the issuance of the said cheque dated 8.1.2013 nor on the next date i.e. on 4.3.2013 so fixed by the Executing Court and subsequent thereto. 14. The petitioner bank on 4.2.2015 again sought for time on the ground that the authorized signatory of the bank who was supposed to sign the cheque is on medical leave and as such the cheque could not be disbursed by the head office of the petitioner bank. Similar petitions were filed on 9.3.2015 and by way of the petition dated 7.4.2015, the petitioner bank brought to the notice of the Executing Court that due to financial year closing it was not possible to pursue the matter of compromise by the Law Officer at Guwahati. Finding the action of the petitioner bank to be only dilatory tactics, the learned Executing Court vide order dated 7.4.2015 and in order to verify whether the talk of compromise was going on, directed the parties to the execution proceeding to be present before the court personally on 29.4.2015. On the date so fixed, none of the representative of the petitioner bank was present and as such the executing court again issued writ of execution. Finally vide order dated 26.5.2015, the bank official who stood as the custodian of the attached properties was directed to show cause for non compliance of the order of the court. 15. On the date so fixed, none of the representative of the petitioner bank was present and as such the executing court again issued writ of execution. Finally vide order dated 26.5.2015, the bank official who stood as the custodian of the attached properties was directed to show cause for non compliance of the order of the court. 15. On 9.6.2015 the present petitioner filed a delay condonation petition in the Second Appeal which was filed on 14.7.2014 and registered as IA No. 600/2015 which is taken up for disposal. The said application was filed after about 11 months from the date of filing of the appeal memo in the unregistered Second Appeal. 16. Mr. Shahewalla, learned Senior counsel, appearing for the petitioner submits that the petitioner bank was compelled to take over the possession of the vehicle in order to assert its legal or remedial right. It is also submitted that in the written statement filed in TS No. 280/2006 by the present petitioner bank as the defendant, categorically stated that the present respondent was free to take back the custody of the vehicle after payment of the outstanding installment. After passing of the judgment and order by the first appellate court the Deputy Manager (Legal) of the petitioner bank sought for further instruction for filing second appeal from the Regional office Kolkata. The said office at Kolkata informed the Deputy Manager (Legal) at Guwahati to seek an opinion from the counsel as to the viability of preferring an appeal against the judgment and decree passed in T.A. No. 107/2010. As the talk of amicable settlement was going on between the parties to the suit, the Regional Officer at Kolkata decided to settle the matter amicably keeping in mind the cost benefit factor as well as other intricacies involved in filing an appeal and the Deputy Manager, Guwahati was instructed to sit in discussion with the present respondent for settlement. The counsel of the respondent was approached on various dates with the proposal for settlement. However, the counsel for the respondent refused to entertain any proposal for settlement below an amount equivalent to 50% of the amount adjudicated by the appellate court. The counsel of the respondent was approached on various dates with the proposal for settlement. However, the counsel for the respondent refused to entertain any proposal for settlement below an amount equivalent to 50% of the amount adjudicated by the appellate court. As the amount involved was beyond the power of the Deputy Manager (Legal) at Guwahati and the Regional office at Kolkata, the decision and approval of the higher authorities of the bank was necessary and the counsel for the respondent was apprised who assured sufficient time to the petitioner Bank for presenting the settlement proposal for consideration and approval of the senior management of the bank in the Head Office at Mumbai. 17. It is further stated that the counsel for the respondent refused to acknowledge any letter/proposal of the petitioner bank of the settlement proposal. In this manner, Mr. Shahewalla wants to bring to the notice of the court that much time was spent in the matter for amicable settlement between the parties to the suit. It is also stated that a cheque dated 8.1.2013 for an amount of Rs. 4,00,000.00 was issued in favour of the respondent but the same was not acknowledged by the respondent. As the Executing Court issued proclamation of sale of the movable properties in the office of the petitioner bank, the petitioner bank was constrained to file an application under Section 47 of the CPC on 29.6.2013. It is further submitted that even during the pendency of the execution proceeding the petitioner bank approached the respondent for reconsideration of her claim and settle the matter amicably which she refused. The connected appeal was filed on 14.7.2014 and the applicant bank was keen on amicable settlement but as the respondent is unwilling to reduce her claim, now the petitioner Bank is constrained to pursue the matter in accordance with law. 18. Mr. Shahewalla submits further that in view of the fact that if the same is not challenged, the functioning of the bank could be hampered and also would cause irreparable loss and injury to the petitioner bank inasmuch as if the movable properties are attached, not to speak of public money involved in the decree but the bank itself would be rendered inoperative. 19. Mr. 19. Mr. Shahewalla also submits that the merit of the appeal deserves condonation of the delay inasmuch as the findings of the First Appellate court are totally perverse and illegal. For the said reason, the delay is supposed to be condoned. In support of his submission, Mr. Shahewalla refers the following decisions:- (1) (2001) 6 SCC 176 (MK Prasad v. P Arumugam), (2) (1996) 9 SCC 309 (State of UP & Ors. v. Harish Chandra & Ors), (3) (1998) 7 SCC 141 (State of A.P. v. Chandrasekhar Reddy & Ors.), (4) (2013) 14 SCC 81 (Basawaraj & Anr. v. Special Land Acquisition Officer, (5) (2002) 4 SCC 458 (Municipal Corporation, Gwalior v. Ramcharan (Dead) by LRS & Ors.), (6) (2009) 13 SCC 192 (State of Karnataka v. Y. Moideen Kunhi (Dead) by LRS & Ors.). 20. Mr. Purakayastha, learned counsel appearing on behalf of the respondent submits that there was no settlement proposal agreed to or expected to be accepted by the respondent. No official letter expressing the terms of settlement had been sent to the respondent by the petitioner bank. The judgment and decree, passed in T.A. Appeal No. 107/2010 was heard and decided in presence of the learned counsel, appearing on behalf of the petitioner bank. The bank is fully aware with regard to the decree passed by the learned appellate court. The decretal amount would not have increased inasmuch as the petitioner Bank owing to their own default failed to deliver back the custody of the vehicle. In fact the writ of attachment for the vehicle was issued by the Executing Court but the bank official informed the bailiff of the court that they were not aware with regard to the location of the suit vehicle. The second appeal was filed on 14.7.2014 and there was no delay condonation petition filed alongwith the said appeal memo. The judgment impugned in the connected second appeal was passed on 20.5.2011. Thereafter the writ of attachment was issued but even then instead of satisfying the decree and/or challenging the same, the petitioner bank started dilatory tactics in order to frustrate the decree obtained by the respondent legally. If there is any wrong findings made by the first appellate court, the petitioner bank was duty bound to file the connected second appeal within the time prescribed. If there is any wrong findings made by the first appellate court, the petitioner bank was duty bound to file the connected second appeal within the time prescribed. Instead the petitioner simply avoided the various orders passed by the Executing Court knowing fully well the consequences that may be faced by the petitioner bank for negligence on the part of the petitioner bank. The issuance of cheque dated 8.1.2013 is nothing but camouflage to hide the reluctancy to honour the decree inasmuch as on 8.1.2013 the date on which the cheque was issued purportedly, the learned counsel for the petitioner bank was very much present in the execution proceeding. The said counsel never even brought to the notice of the said Executing Court with regard to the issuance of cheque for an amount of Rs. 4,00,000.00 for the purpose of an amicable settlement. The said act itself goes to show that the said issuance of cheque is subsequent after thought of the petitioner bank in order to overcome the hurdle of the bar of the limitation in preferring the connected appeal. The present respondent had expressed her intention by preferring the first appeal that she would not go for an out of the court settlement. Even then the stand taken by the petitioner Bank that the counsel appearing on behalf of the respondent refused to the settlement, itself cannot be a ground on the part of the petitioner bank to prefer the second appeal without losing any time. Merely stating that there are official formalities to be followed before filing an appeal is totally unbelievable inasmuch as even if there are official formalities to be followed for filing an appeal from the concerned Department of the petitioner Bank that cannot and under no circumstances be believed to take 4 years of time from the date of judgment and decree passed in the appeal. Even the delay condonation petition was filed on 9.6.2015 whereas the appeal was filed on 14.7.2014 before this court and the subsequent submission of the petitioner that the said delay condonation petition was misplaced in the Registry of this court is not at all believable as the office copy of the said petition could have been brought before this court in support of the said contention. 21. Mr. 21. Mr. Purakayastha further submits that owing to the said intentional delay on the part of the petitioner bank, a right has accrued on the present respondent in the form of the decretal amount which has accrued to her purely on the negligence on the part of the petitioner bank. The delay cannot be condoned in such a situation wherein a right has accrued to the present respondent. It is further submitted that if the petitioner bank was aware with regard to the poor merit of the judgment of the first appeal, it was the duty of the petitioner bank to set aside the decree by filing the Second Appeal within the period of limitation prescribed inasmuch as the said decree was not passed ex-parte without hearing the petitioner bank. Submitting as such, Mr. Purakayastha relied upon (1) 1987 AIR (SC) 1242 (Ram Sarup Gupta (Dead) by LRS v. Bishun Narain Inter College & Ors.) (2) (2003) 8 SCC 752 (RVE Venkatachala Gounder v. Arulmigu Viswesaraswami & VP Temple & Anr.), (3) (2012)12 SCC 693 (B. Madhuri Gourd v. B. Damodar Reddy), (4) (2013) 12 SCC 649 (Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors.) and prayed for rejection of the delay condonation petition with cost. 22. Considered the submissions of the learned counsels appearing for both the parties. 23. In 2013 (14) SCC 81 (supra), the Hon'ble Apex Court held as follows. "9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient", embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn, Ltd. V. Bhutnath Banerjee, Mata Din V.A. Narayanan, Parimal V. Vena and Maniben Devraj Shah V. Municipal Corporation Brihan Mumbai.)" 24. Keeping the said ratio in view this court examines the acts and deeds on the part of the petitioner bank and its officials in order to decide if the submission made through this application by the petitioner bank are bonafide or concocted and whether the element of negligence are found in their acts and deeds. The T.S. No. 280/2006 filed by the respondent against the petitioner bank was decreed in presence of the learned counsel appearing on behalf of both the parties by the learned court of the Munsiff No. 3, Kamrup (M), Guwahati. The decree was for restitution of the vehicle so repossessed by the petitioner by delivery of its possession to the respondent and for a sum of Rs. 4,815.70 paise as costs. The said decree was put to execution in T. Ex. Case No. 10/2010. As apparent from the report of the bailiff of the court it is on record that the bank officials were unaware with regard to the whereabout of the vehicle supposed to be delivered back to the respondent. The said report was dated 8.12.2010. Vide the subsequent report dated 8.1.2011, the bailiff reported to the executing court that the bank official asked the bailiff to contact its head office for recovery of the vehicle and the decretal amount. What an attitude towards a lawful decree? The said report was dated 8.12.2010. Vide the subsequent report dated 8.1.2011, the bailiff reported to the executing court that the bank official asked the bailiff to contact its head office for recovery of the vehicle and the decretal amount. What an attitude towards a lawful decree? Thereafter the judgment and decree in TA No. 107/2010 was passed on 20.5.2011. The said judgment and decree was passed in the presence of the learned counsel appearing on behalf of the petitioner bank. From the date of said judgment and decree it is apparent that last date of filing the second appeal was 20.8.2011. 25. In the present petition, the petitioner had annexed a letter dated 22.12.2008 addressed to the respondent thereby asking for confirmation of the settlement proposal in TS No. 280/2006. The suit was decreed on 30.6.2010. Thereafter, another letter dated 26.11.2010 is annexed wherein the petitioner bank addressed to the respondent thereby expressing its unhappiness for preferring the TA No. 107/2010 for enhancement of the compensation. The decree passed in the said appeal was put to execution and as already mentioned hereinabove, the petitioner through its counsel and officials took various steps in the execution proceeding and even went to file an application under Section 47 of the Code of Civil Procedure, 1908 thereby bringing the element of fraud while passing the decree in the suit which however, was dismissed on 5.12.2013. The amended execution petition was filed on 24.10.2011 by the respondent thereby claiming the decretal amount passed by the first appellate court. On 15.5.2012 as aforesaid, the petitioner bank informed the Executing Court that it would appear through its counsel on 16.5.2012 and since then the petitioner bank had all along been present in the execution proceeding. The amended execution petition was filed on 24.10.2011 by the respondent thereby claiming the decretal amount passed by the first appellate court. On 15.5.2012 as aforesaid, the petitioner bank informed the Executing Court that it would appear through its counsel on 16.5.2012 and since then the petitioner bank had all along been present in the execution proceeding. After such appearance on 16.5.2012 in the Executing Court, a letter dated 19.06.2012 has been annexed by the petitioner in this application addressed to the counsel appearing on behalf of the respondent informing him that the settlement proposal had been approved and as the Head of the Legal Department of the bank was on medical leave and would resume duty on 5.7.2012, the payment of the agreed amount involved would be made and as such in the adjournment petition dated 20.7.2012 filed by the petitioner bank before the Executing Court it was informed to the court that the talk of compromise is going on between the parties and the Legal Manager was leaving to Kolkata to attend the meeting which included the issue of compromise in the agenda of the said meeting. In this manner, the petitioner appeared in the execution proceeding without taking any steps for filing the appeal. 26. Thereafter, the said application under Section 47 of the CPC was filed which was dismissed on 5.12.2013. Even then the petitioner bank failed to prefer an appeal knowing fully well the intent of the present respondent that they had preferred the appeal for enhancement of the compensation. It is further taken note by this court that by way of judgment and decree, Rs. 1,000.00 per diem was directed to be paid to the respondent against hiring charge of another vehicle after the vehicle was repossessed by the petitioner bank. The decretal amount which was only Rs. 4,815.00 on the date of decree increased to Rs. 39,00,000.00 purely on the ground that the petitioner bank failed to redeliver the decretal vehicle which as per the submission made in this application is very much in the custody of the petitioner bank. The petitioner bank had not preferred any appeal nor satisfied the decree by redelivering back the vehicle and it is for their own default the decretal amount had increased. 27. The petitioner bank had not preferred any appeal nor satisfied the decree by redelivering back the vehicle and it is for their own default the decretal amount had increased. 27. The intent of the respondent that she would go for remedial measure through the court was very much realized by the official of the bank after filing of the T.A. No. 107/2010 as apparent from the letter referred hereinabove addressed to the respondent. After the letter dated 26.11.2010, addressed to the respondent with regard to the settlement, there is no communication with the respondent at least till 20.8.2011, the date on which the time period for filing of the second appeal expired. From the affidavit in opposition filed by the respondent, it is seen that the petitioner bank through its counsel appeared only on 16.5.2012 in the executing court. From the copy of the petition annexed to the affidavit-in-opposition of the respondent, it is very much apparent that the learned counsel was engaged by the petitioner bank on the date so fixed for appearance of the petitioner bank in the executing proceeding. The petitioner failed to show before this court any application before the First appellate Court thereby seeking time in order to go for a settlement outside the court at least to show its bona fide. It is further surprising to note that on 8.1.2013, a cheque was drawn in the name of the respondent in order to settle the matter amicably but the bank was totally silent on 8.1.2013 before the Executing Court wherein the said date was fixed for passing necessary order. In order to show bonafide on the part of the petitioner bank nothing of the sort of any communications between the bank official at Guwahati and the one at Mumbai are produced and placed before this court. In fact, the petitioner bank in its petition stated that on 20.11.2011, the Deputy Manager Legal, Guwahati forwarded the proposal for settlement without accepting the proposal of the respondent through the Regional Officer at Kolkata. However, no supporting document with regard to forwarding of the said proposal for settlement is produced before this court. Even if any settlement proposal was issued, it was on 20.11.2011 i.e. after the period of limitation for filing the second appeal had expired. 28. However, no supporting document with regard to forwarding of the said proposal for settlement is produced before this court. Even if any settlement proposal was issued, it was on 20.11.2011 i.e. after the period of limitation for filing the second appeal had expired. 28. Under Section 5 of the Limitation Act, 1963, the court can condone the delay in preferring any appeal if it is satisfied that there are sufficient causes on the part of the appellant within the stipulated period of limitation for filing the appeal. Any ground shown beyond the period of limitation, the same cannot cover the explanation as required for condonation of delay which must be restricted to the period of 90 days from the date of judgment and decree passed in the first appeal till the last date on which the said period of 90 days expires. 29. The petitioner has failed to show such sufficient causes within the said period of 90 days. The petitioner even failed to explain as to why they could not file the appeal on 20.8.2011, on which date the limitation period expired for filing the appeal nor any exchange of settlement proposal during the intervening period from the date of judgment passed on 20.5.2011 and 20.08.2011. 30. The plea of amicable settlement cannot be accepted inasmuch as the petitioner bank has failed to show any materials before the court wherefrom it can be gathered that the respondent agreed to the proposal made by the petitioner bank within the period of 90 days from the date of judgment and decree passed in T.A. 170/2010. Under such circumstances, the plea of consumption of time for amicable settlement does not hold good in favour of the petitioner. 31. From the acts and deeds of the officials of the petitioner bank it can very well be concluded that the petitioner bank was totally negligent in taking steps for filing the appeal even after expiry of the period of limitation. In (2013) 14 SCC 81 (Supra), the Hon'ble Apex court held as follows:- "11. 31. From the acts and deeds of the officials of the petitioner bank it can very well be concluded that the petitioner bank was totally negligent in taking steps for filing the appeal even after expiry of the period of limitation. In (2013) 14 SCC 81 (Supra), the Hon'ble Apex court held as follows:- "11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, in action or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible (Vide Madanla V. Shyamlal and Ram Nath Sao V. Gobardan Sao). 12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statue so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation". The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statue."? 32. The conduct of the officials of the petitioner bank is discussed in order to bring to light the attitude of the officials in accepting the lawful decree passed by the competent court. The petitioner bank is proud of its robust legal Department and the officials under the said department. From the series of action so discussed in the execution proceeding, the said Legal Department and its officials are up with the intention to frustrate the lawful action initiated by the litigants who are harassed by the bank officials in the name of repossession of vehicle that too in a manner unknown to the cannons of law. 33. From the series of action so discussed in the execution proceeding, the said Legal Department and its officials are up with the intention to frustrate the lawful action initiated by the litigants who are harassed by the bank officials in the name of repossession of vehicle that too in a manner unknown to the cannons of law. 33. The act of negligence and inaction on the part of the petitioner bank in preferring the connected Second Appeal that too after a period of 1053 days from the date of judgment i.e. 28.5.2011, passed in T.A. No. 170/2010 can very well be inferred. There are no explanations which are convincible to this court that the petitioner bank was sincere in its effort in pursuing the matter to end up by way of an out of the court settlement. It is futile to say that the respondent did not respond to the proposal of settlement. The petitioner bank, as already stated has its own Legal Department and no outside help is required to point out the consequences that may be faced by the bank in delaying the act of satisfaction of the decree keeping in view the nature of decree. Moreover, even after filing of the Second Appeal on time, the matter could have been pursued for an out of the court settlement amicably with the respondent. The bank officials are not at all sincere to satisfy the decree or for settlement of the same because they even defied the direction of the executing court for personal appearance of the bank official. Thus, the explanation for causes shown for the delay in preferring the second appeal are not at all sufficient inasmuch as acts of negligence, inaction and lack of bonafide can very well be attributed on the part of the petitioner bank and its officials. 34. Mr. Shahewalla, the learned senior counsel for the petitioner submitted that there is merit in the Second Appeal inasmuch as the First Appellate Court wrongly decided the Issue No. 10 referred hereinbefore. Further it is submitted that the matter involves public money. Mr. Purakayastha, the learned counsel for the respondent strongly opposes the said submission. The said submission of Mr. Mr. Shahewalla, the learned senior counsel for the petitioner submitted that there is merit in the Second Appeal inasmuch as the First Appellate Court wrongly decided the Issue No. 10 referred hereinbefore. Further it is submitted that the matter involves public money. Mr. Purakayastha, the learned counsel for the respondent strongly opposes the said submission. The said submission of Mr. Shahewalla cannot be accepted inasmuch as if the Second appeal has merit then a duty was cast upon the concerned Legal Department and its highly qualified professionals to advice prompt filing of the Second Appeal and stay the operation of the decree and the execution proceeding thereby arresting the mounting decretal dues, if at all the petitioner bank realised involvement of public money in satisfying the decree. Section 5 of the Limitation Act, 1963 stipulates the fact of satisfaction that the petitioner had sufficient cause for not preferring the appeal within such period lies with the court. The explanation given by the petitioner for the cause of delay does not fall within the broad ambit and scope of "Sufficient cause" pointed out by the ratio laid down by the Hon'ble Apex Court. Consequence flowing from a statute cannot be said to be evil because law is hard because it is the law. It is apparent that owing to the negligence of the petitioner bank a right has accrued on the respondent for entitlement of the dues including the hiring charges inasmuch as the suit vehicle is still in the petitioner's custody and there is no difficulty in satisfying the decree at the earliest point of time. Accordingly, the prayer for condonation of delay of 1053 days in preferring the connected second appeal against the judgment and decree dated 20.05.2011 passed in TA No. 107 of 2010 is rejected by imposing a cost of Rs. 1,00,000.00 (Rupees One Lakh) only to be paid to the Legal Aid Cell of this Court through the Registry. This cost is imposed for misleading the Executing Court in the execution proceeding which is a judicial proceeding and no institution should show its attitude to disrespect judicial pronouncement and subsequently come to this court in order to cleanse itself from its misdeeds consuming the valuable time of this court. The amount of the cost so imposed must be paid within a period of 3 (three) weeks from the date of pronouncement of this order. The amount of the cost so imposed must be paid within a period of 3 (three) weeks from the date of pronouncement of this order. Registry to follow up accordingly.