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2018 DIGILAW 1268 (GUJ)

BANK OF BARODA v. PIONEER GLOBEX PRIVATE LIMITED

2018-12-19

A.C.RAO, MOHINDER PAL

body2018
JUDGMENT : A.C. RAO, J. 1. RULE. Mr. Prithu Parimal, leaned advocate waives service of notice of rule on behalf of the respondent Nos.1 to 7. 2. At the request of the learned counsel for the respective parties and in the facts and circumstances of the case, present petition is taken up for final hearing. 3. By way of this petition under Article 226/227 of the Constitution of India, the petitioner has prayed for the following reliefs:- “[A] To issue a writ of Mandamus or any other suitable writ, order or direction to quash and set aside order dated 04.12.2018 passed by the Hon’ble Debts Recovery Appellate Tribunal, Mumbai (hereinafter referred to as “the DRAT”) in Appeal No.33/2018. [B] To stay the operation of the impugned order dated 04.12.2018 passed by the Hon’ble Debts Recovery Appellate Tribunal, Mumbai in Appeal No.33 of 2018, pending hearing and final disposal of this Special Civil Application. [C] To direct the Hon’ble D.R.A.T., Mumbai not to release Rs.12 Crores along with interest as kept in FDR which were deposited by the respondents on 04.05.2018 pending hearing and final disposal of this Special Civil Application. [D] To direct the Hon’ble D.R.A.T., Mumbai to release Rs.12 Crores along with interest (as kept in FDR) to the Applicant Bank pending hearing and final disposal of this Special Civil Application subject to just and fair terms as may be imposed by the Hon’ble Court. [E] To grant such other reliefs as this Hon’ble Court may deem fit in the interest of justice and fairness.” 4. Facts leading to file the present writ petition are as under:- 4.1. The petitioner Bank filed Original Application No.414 of 2017 before the Debts Recovery Tribunal-II, Ahmedabad for recovery of Rs.26,64,58,380.61 along with interest and costs against the respondent Nos.1 to 7 herein. 4.2. The respondent Nos.1 to 7 were duly served with the summons / notice along with the copy of the O.A. No.414 of 2017 on 01/06/2017 and the respondent Nos.1 to 7 appeared through an Advocate and filed undertaking on 12/07/2018 to file Vakalatnama and written statement on the next date of hearing. However, though the matter was adjourned on 08/08/2017 and 20/9/2017, the respondent Nos.1 to 7 neither filed their appearance, nor filed Vakalatnama or written statement. 4.3. However, though the matter was adjourned on 08/08/2017 and 20/9/2017, the respondent Nos.1 to 7 neither filed their appearance, nor filed Vakalatnama or written statement. 4.3. Thereafter in the month of October, 2018 the respondent Nos.1 to 7 filed Special Civil Application Nos.18311/2017 and 18313/2017 before this Court seeking interim relief restraining the petitioner Bank from taking physical possession of mortgaged property under SARFAESI Act and this Court granted interim relief on condition that the respondents herein shall deposit Rs.2.5 Crores with the petitioner herein Bank on or before 10/10/2017 and the respondents herein – petitioners in the said petitions shall come forward with the schedule of payment of remaining debt on or before the returnable date without fail. 4.4. Thereafter the respondent Nos.1 to 7 herein withdrew both the aforesaid writ petitions and accordingly the same came to be disposed of by this Court as withdrawn vide order dated 17/10/2018. 4.5. Even after disposal of the aforesaid two writ petitions, the respondent Nos.1 to 7 herein never appeared before the Debts Recovery Tribunal, Ahmedabad (“DRT” for short) and after giving sufficient opportunity to the respondent Nos.1 to 7 herein, the DRT passed ex-parte judgement and decree on merits on 22/12/2017 and granted Recovery Certificate of Rs.26,64,58,380.61 and thereafter on 25/1/2018, the petitioner Bank issued demand notice for the dues of Rs.29.08,11,946.57 along with future interest and costs. 4.6. Thereafter the respondents herein filed Miscellaneous Application No.8 of 2018 under section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the RDDBFI Act” for short) to quash and set aside ex-parte judgement and decree dated 22/12/2017 as well as the Recovery Certificate, and also to direct the Recovery Officer not to execute the Recovery Certificate and to reopen the matter. The said application came to be dismissed by the DRT vide order dated 26/2/2018. 4.7. The respondents thereafter had filed Special Civil Application No.3565 of 2018 before this Court challenging order dated 22/12/2017 passed in O.A. No.414 of 2017 and order dated 26/2/2018 passed in restoration application being M.A. No.8/2018 by the DRT. The said petition was heard and disposed of vide order dated 05/04/2018 as alternative efficacious remedy is available to the respondents. 4.8. The respondents thereafter had filed Special Civil Application No.3565 of 2018 before this Court challenging order dated 22/12/2017 passed in O.A. No.414 of 2017 and order dated 26/2/2018 passed in restoration application being M.A. No.8/2018 by the DRT. The said petition was heard and disposed of vide order dated 05/04/2018 as alternative efficacious remedy is available to the respondents. 4.8. The respondents herein preferred an appeal before the Debts Recovery Appellate Tribunal, Mumbai being Appeal No.33 of 2018 against the order dated 26/2/2018 passed in restoration application being M.A. No.8 of 2018 in Original Application No.414 of 2017 by the DRT, Ahmedabad. After hearing both the sides, the learned DRAT allowed the said Appeal and set aside the ex-parte judgement and decree passed by the DRT in O.A. No.414 of 2017 against the defendant Nos.1 to 5 and the learned DRAT further directed the DRT to restore the O.A. No.414 of 2017, decide the matter afresh and also ordered to refund the amount deposited by the respondents herein at the time of preferring appeal being condition precedent to prefer appeal. 4.9. Feeling aggrieved by and dissatisfied with the impugned order passed by the learned DRAT allowing the appeal and remanding the matter to the DRT, the petitioner Bank herein has preferred the present petition under Article 226/227 of the Constitution of India for the aforementioned reliefs. 5. Heard Mr. Bhaskar Sharma, learned advocate appearing with Mr. Ankit Shah learned advocate appearing on behalf of the petitioner Bank and Mr. I.H. Saiyed, learned counsel appearing with Mr. Prithu Parimal, learned advocate appearing on behalf of the respondent Nos.1 to 7 at length. 6. Mr. Ankit Shah, learned advocate appearing on behalf of the petitioner Bank has vehemently submitted that this Court vide order dated 7/12/2018 issued notice and passed interim order and after passing of the said order, Mr. I.H. Saiyed, learned counsel appearing with Mr. Prithu Parimal, learned advocate appearing on behalf of the respondent Nos.1 to 7 at length. 6. Mr. Ankit Shah, learned advocate appearing on behalf of the petitioner Bank has vehemently submitted that this Court vide order dated 7/12/2018 issued notice and passed interim order and after passing of the said order, Mr. I.H. Saiyed, learned counsel appearing on behalf of the respondents mentioned the matter and submitted that that after the interim order passed by the DRAT, the respondents herein had filed a Caveat Application before this Court, however, the matter was not shown in the cause list of the learned advocate for the respondents herein – caveators and therefore, he could not remain present before the Court on 7/12/2018 at the time when Notice was issued making it returnable on 13/12/2018 and directing the Registrar, DRAT Mumbai to keep the FDR intact and the same will not be encashed by the respondents herein till the returnable date. It is submitted that aforesaid the notice was issued and interim relief was granted, on 7/12/2018, Mr. I.H. Saiyed, learned counsel for the respondents appeared before the Court and made a mention before the Court and made a statement that the respondents will not withdraw the amount invested in long term Fixed Deposit lying with the Registrar, DRAT Mumbai and therefore, further order was passed in the present matter on the same day i.e. on 7/12/2018. 6.1. Be that it may. But the fact remains that the FDR is lying with the Registrar, DRAT, Mumbai is not encashed by the respondents herein and therefore, the aforesaid aspect of filing of Caveat and not appearing the name of the caveator is of not much significance in view of the fact that we have heard the main matter itself. 6.2. Learned counsel for the petitioner – Bank has vehemently submitted that the respondents herein were served with the summons / notice issued by the DRT and they appeared through advocate before the DRT and filed undertaking to file Vakalatnama and Written Statement on the next date of hearing, however, the respondents thereafter neither filed their Vakanatnama nor filed their Written Statements before the DRT. It is submitted that the learned DRT has given sufficient opportunities to the respondents herein, however, the respondents herein have chosen not to appear before the DRT and not to file Vakalatnama and Written Statement. It is submitted that the learned DRT after giving sufficient opportunity and waiting for more than six months, passed ex-parte judgement and decree and therefore, the learned Tribunal rightly rejected the application preferred by the respondents for restoration. However, the learned DRAT has wrongly allowed the appeal and remanded the matter and also erred in passing order for refund of the amount deposited by the petitioners herein in M.A. No.509/2018. It is submitted that in fact, the said M.A. No.509/2018 was never heard by the learned DRAT, however, without hearing the said application, the tribunal erred in passing order for refund of the amount in favour of the respondents. 6.3. Learned advocate appearing on behalf of the petitioner Bank has further submitted that the respondents herein have failed to make out a case for restoration. It is submitted that the respondents herein have failed to show that they were prevented by any sufficient cause from appearing before the DRT. 6.4. Learned advocate appearing on behalf of the petitioner Bank has further submitted that the respondents herein have failed to point out any legal ground to justify the order passed by the leaned DRAT setting aside the ex-parte judgement and decree passed by the learned DRT. It is submitted that the learned DRAT has mechanically allowed the appeal and set aside the ex-parte judgement and decree and passed order for refund of amount in favour of the respondents. 6.5. Learned advocate appearing on behalf of the petitioner has further submitted that the learned DRAT has failed to consider the provision of law and relevant consideration for setting aside the ex-parte judgement and decree. It is submitted that as per Order 9 Rule XIII, ex-parte judgement and decree can be set aside only on two grounds namely (1) when the summons is not served on the defendant or (2) defendant is prevented from any cause from appearing when the suit was called for hearing. It is submitted that as per the proviso, a decree cannot be set aside on the ground that there has been any irregularity in service of Summons if it is established that the defendant had notice of the date of hearing. It is submitted that as per the proviso, a decree cannot be set aside on the ground that there has been any irregularity in service of Summons if it is established that the defendant had notice of the date of hearing. It is submitted that it is not the case of the respondents herein that they were not serviced with the summons issued by the DRT. It is submitted that it is also not the case of the respondents that they were not aware about the proceedings initiated by the petitioner Bank against them and going on before the DRT. It is submitted that in fact and even as per the case of the respondents after service of summons, they appeared before the DRT through advocate and filed Undertaking to file their Vakalatnama and Written Statement. Thereafter, the respondents had chosen not to appear before the DRT and therefore, after giving sufficient opportunities to the respondents, the learned DRT has rightly passed ex-parte judgement and decree against the respondents, however, the learned DRAT has wrongly interfered with the same and erred in allowing the appeal and remanding the matter to the DRT. 6.6. Learned advocate appearing on behalf of the petitioner has further submitted that the ex-parte judgement and decree passed by the DRT is just and legal and no error has been committed by the learned DRT while passing the expate judgement and decree. It is submitted that in fact, the learned DRT while passing the ex-parte judgement and decree has also relied upon two decisions of the Hon’ble Apex Court in the case of Sunil Podar Versus Union Bank of India, reported in AIR 2008 S.C. 1006 as well as in the case of Sunil Datta TMSMC, reported in (1993) 2 SCC 185 . 6.7. Mr. Sharma, learned counsel for the petitioner Bank has further submitted that the conduct of the petitioner in not appearing before the tribunal after service of notice and after instructing advocate to appear on their behalf and after filing of Undertaking to file Vakalatnama and Written Statement is not bonafide and it was a part of delaying tactics. It is submitted that crores of rupees is due to be paid by the respondents to the petitioner Bank which is public money and the respondents do not want to pay the debt and want to delay the recovery proceedings. It is submitted that crores of rupees is due to be paid by the respondents to the petitioner Bank which is public money and the respondents do not want to pay the debt and want to delay the recovery proceedings. It is submitted that as a part of delay tactics in past also the respondents had approached twice this Court, though statutory alternative remedy was available and when this Court tried to resolve the dispute, the respondents did not come forward with schedule for repayment of the loan amount, even under SERFAESI Act and said conduct of the respondents show that they want to delay the recovery proceedings initiated by the Bank for recovery of huge amount of public money. It is submitted that the conduct of the respondents in not appearing before the DRT is not bonafide but malafide. It is submitted that even otherwise, learned DRAT has quashed and set aside the decree against the defendant Nos.1 to 5 only and the ex-parte judgement and decree stands against the defendant Nos.6 and 7. Making above submissions, learned counsel for the petitioner Bank has requested to allow the present petition and quash and set aside the impugned order passed by the learned DRAT. 7. Present petition is opposed by Mr. I.H. Saiyed, learned counsel appearing on behalf of the respondents. It is submitted that the impugned order passed by the learned DRAT is just and legal and no illegality has been committed by the learned DRAT and hence no interference of this Court is warranted. 7.1. Mr. Saiyed, learned counsel for the respondents has further submitted that the learned DRT has passed the judgement and decree ex-parte without hearing the respondents herein and therefore, the learned DRAT has rightly remanded the matter to decide the matter afresh, after hearing the parties. It is submitted that no prejudice is likely to be caused to the petitioner Bank if the matter is remanded to the DRT and the matter is decided by the DRT afresh. 7.2. Mr. It is submitted that no prejudice is likely to be caused to the petitioner Bank if the matter is remanded to the DRT and the matter is decided by the DRT afresh. 7.2. Mr. Saiyed, learned counsel for the respondents has further submitted that against the loan of Rs.23.86 Crores, the respondents have already deposited Rs.22.88 Crores towards interest and has also deposited Rs.12 Crores and even property worth more than Rs.30.25 Crores is mortgaged with the petitioner Bank and thus, the debts of the petitioner Bank is already secured and therefore also no prejudice is likely to be caused to the petitioner Bank if the matter is remanded and decided by the DRT afresh, as directed by the learned DRAT. Making above submissions, learned counsel for the respondents has requested to dismiss the present petition. 8. Heard the learned counsel for the respective parties at length. Perused the impugned order passed by the learned DRAT as well as the evidence placed. 8.1. The respondents are Partners in a Partnership Firm who are well educated and are practical businessman unlike rustic innocent villagers practicing their entire trust in their advocate. The respondents know where their interest lies. The respondents, after service of summons and engaging advocate, were watching the proceedings of the DRT at the fence and did not file Vakalatnama and Written Statement and did not appear before the GRT till ex-parte judgement and decree is passed by the DRT. The respondents had also twice approached this Court inspite of the statutory efficacious alternative remedy and once in the writ petition challenging the order passed under SURFAESI ACT, this Court tried to resolve the dispute and directed the respondents herein to submit schedule for repayment of the due amount to be paid to the petitioner Bank. However, the respondents did not submit the schedule for repayment of the due amount to the Bank and ultimately withdrawn the writ petitions from this Court. This shows the conduct of the respondents defendants and speaks volume of things against the respondents. From the conduct of the respondents it is clear that the respondents herein – original defendants want to delay the recovery proceedings. Crores of rupees is due to be paid by the respondents – original defendants to the petitioner Bank which is public money. This shows the conduct of the respondents defendants and speaks volume of things against the respondents. From the conduct of the respondents it is clear that the respondents herein – original defendants want to delay the recovery proceedings. Crores of rupees is due to be paid by the respondents – original defendants to the petitioner Bank which is public money. The conduct of the respondent in not appearing before the DRT till the ex-parte judgement and decree is passed does not seem to be bonafide and considering the overall facts, seems to be merely a devices to cover an ulterior purpose to delay the recovery proceedings initiated by the petitioner Bank. On perusal of the impugned order passed by the DRAT, it is clear that the DRAT has not given any specific finding while setting aside the ex-parte judgement and decree passed by the learned DRT that why the ex-parte judgement and decree passed by the learned DRT is wrong or illegal and what illegality or mistake has been committed by the learned DRT. The learned DRAT has passed the impugned order without considering the relevant considerations. The learned DRT has passed reasoned order while rejecting the application for setting aside the ex-parte judgement and decree. Even the learned DRT has specifically observed and held that action of the respondents / defendants in not appearing before the DRT was delaying tactics. It is the specific finding of the DRT that not appearing before the DRT after service of summons till ex-parte decree is passed is nothing but to delay the recovery proceedings. Even otherwise, the only ground on behalf of the respondents that their advocate did not inform them the next date and the advocate kept them in dark, is not tenable in view of the of the reasoned order passed by the DRT while rejecting the restoration application as well as in view of the decision of the Hon’ble apex Court in the case of Sunil Poddar (supra) and Salil Dutta (supra). 8.2. From the record, it is clear that the respondents were served with the summons issued by the DRT on 1/6/2017 and they appeared before the DRT on 12/7/2017 through Advocate and file undertaking to file Vakalatnama and Written Statement on the next date of hearing. However, thereafter there was no representation on behalf of the respondents before the DRT on subsequent dates. However, thereafter there was no representation on behalf of the respondents before the DRT on subsequent dates. Therefore the learned DRT passed ex-parte judgement and decree on merits on 22/12/2017. Thus, after service of the summons on 1/6/2017, respondents appeared through advocate before the DRT and filed undertaking on 12/7/2017, however, there after none appeared on behalf of the respondents before the DRT nor even filed Vakalatnama or Written Statement on various dates from July, 2017 till December, 2017 and therefore, after giving sufficient opportunities after service of summons and after appearance through advocate, the learned DRT passed judgement and decree ex-parte on merits on 22/12/2017. Thus, learned DRT has passed the ex-parte judgement and decree after giving sufficient opportunities to the respondents. However, the respondents have chosen not to appear before the DRT. The only case on behalf of the respondents is that their advocate Mr. Amit Kotak did not inform them the next date before the DRT and the advocate kept the respondent in dark. However, the said ground of defence of the respondents cannot be said to be a sufficient ground. The learned DRT had rejected the application to set aside the ex-parte judgement and decree considering the facts of the case and relying on two decisions of the Hon’ble Apex Court. However, the learned DRAT quashed and set aside the ex-parte judgement and decree, ignoring the two decisions relied upon by the DRT while rejecting the application to set aside ex-parte judgement and decree. The DRT has considered the case of the respondents and two decisions of the Apex Court in the case of Sunil Poddar & Others Versus Union Bank of India, reported in AIR 2008 S.C. 1006 as well as in the case of Sunil Dutta Versus T.M. & M.C. Pvt. Ltd. reported in 1993 SCC (2) 185, in paragraph Nos. 13, 14, 15, 16 and 17 of its order passed in restoration application being M.A. No.8 of 2018 while rejecting the restoration application, which read as under:- “13. Hon’ble Apex Court in the case of Sunil Poddar & Others V/s. Union bank of India, AIR 2008 S.C. 1006 held as below : “18. 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 February 1, 1977 now reads thus : “13. 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 February 1, 1977 now reads thus : “13. Setting side decree ex-parte against the 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 decee 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 plaintiffs claim. Explanation : Where there has been an appeal against a decree passed ex-parte under this rule, the appeal has been disposed of on any ground rather 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). 14. 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 under Order V of the Code, but whether (I) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer 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 of Order IX of the Code. Since the sad provision applies to Debt Recovery Tribunal and Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunal were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff Bank and on that ground, ex-parte order deserves to be set aside.” 14A. In the facts and circumstances of the present case, it is not the case of the applicants/defendants that they have no knowledge of the proceeding pending before this Tribunal. Rather the defendant's case are that they engaged Mr. Amit Kotak, Advocate who did not conducted the case carefully. However, after instructing Mr. Amit Kotak to appear in the matter, the defendants did not care about their matter till decision was pronounced by this Tribunal. 15. Hon'ble Apex Court in the case of Sunil Dutta V/s. T.M. & M.C. Pvt. Ltd. 1993 SCC (2) 185 held as below : “The advocate is agent of the party. His acts and statements, made within the limit of authority given to him, are the acts and statements of the principle i.e. the party who engaged him. It is true that in certain situations, the Court may, in interest of justice, set aside a dismissal order or an ex-parte decree notwithstanding with negligence and/or misdemeanor of the advocate where it finds that client was innocent litigant but there is no such absolute rule that party can disown its advocate and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make a working of the system extremely difficult. No such absolute immunity can be recognized. Such an absolute rule would make a working of the system extremely difficult. The observation made in the Rafique [ AIR 1981 SC 1400 ] must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned herein above, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessman who know where their interest lies. It is evident that when their application was not disposed of before taking up the suit for final hearing, they felt piqued and refused to appear before the Court. May be, it was a part of delaying tactics as alleged by the plaintiff. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame on advocate and trying to make it out as if they were totally unaware of the nature or sufficient of the proceeding is a theory which cannot be accepted and ought not to have been accepted.” 16. From the facts and circumstances of the case in its entirety, I do not find that this is denial of opportunity of hearing to the applicants. I am convinced that the applicants defendants had not come forward with clean hands. They wanted to delay the Recovery Proceedings. The applicants / defendants were aware of proceeding pending before this Tribunal but did not care to inquire into the matter after instructing their advocate to appear in the matter. This is not the case of the applicant that at any point of time before pronouncement of judgements, the defendants approached their counsel to inquire about the matter. 17. Therefore, in view of the aforesaid facts and provisions of law, the present Miscellaneous Application is dismissed being devoid of merits.” 8.3. This is not the case of the applicant that at any point of time before pronouncement of judgements, the defendants approached their counsel to inquire about the matter. 17. Therefore, in view of the aforesaid facts and provisions of law, the present Miscellaneous Application is dismissed being devoid of merits.” 8.3. Under section 22(2)(g) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, the aggrieved persons may prefer and application for setting aside any order of dismissal of any application for default or any order passed by it ex-parte as quoted hereunder:- “22. Procedure and powers of the Tribunal and the Appellate Tribunal. (1) *** *** *** (2) The tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court and under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters namely :- *** *** *** (g) setting aside any order of dismissal or any application for default or any order passed by it ex-parte.” 8.4. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the 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”. 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 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 devices to cover an ulterior purpose, as held by the Hon'ble Apex Court in the following decisions :- (i) Manindra Land and Building Corporation Ltd. Versus Bhootnath Banerjee &Others reported in AIR 1964 S.C. 1336 ; (ii) Lala Matadin Versus A Narayanan, reported in AIR 1970 S.C. 1953 ; (iii) Parimal Versus Veena @ Bharti, reported in AIR 2011 S.C. 1150 ; (iv) Maniben Devraj Shah Versus Municipal Corporation of Brihan Mumbai, reported in AIR 2012 S.C. 1629 . 9. In view of the above and for the reasons stated above, present petition is allowed. The impugned order passed by the learned DRAT, Mumbai in Appeal No.33 of 2018 dated 4/12/2018 is hereby quashed and set aside. Rule is made absolute. In the facts and circumstances of the case, there shall be no orders as to costs. Petition allowed.