Holding

The order condoning the delay under Section 5 of the Limitation Act is set aside; the matter is remitted to the High Court to consider the specific factual contention regarding the bank’s lawyer’s appearance and decide afresh.

Summary

The State Bank of India obtained a preliminary decree for a sum of Rs. 70,087.75 in 1987 and was required to apply for a final decree by 31‑12‑1991. It filed the application only on 27‑7‑1994, seeking condonation of a 714‑day delay under Section 5 of the Limitation Act, 1963 and Order 34 Rule 5 of the CPC. The subordinate court dismissed the condonation application for lack of sufficient cause; the Andhra Pradesh High Court set aside that order and allowed the condonation, directing a modest cost payment. The appellants (Veera Hanuman Rice & Flour Mill and others) appealed, contending that the High Court failed to consider their specific factual plea that the bank’s lawyer was regularly appearing in court during the period of delay, and that the limitation period should be applied strictly, especially where public money is involved. The Supreme Court held that the High Court’s omission of this material factual contention rendered its order untenable, set aside the condonation, and remitted the matter to the High Court to reconsider the delay with due regard to the lawyer’s appearance and decide afresh. The appeal was allowed and no costs were awarded.

Issues considered

Whether the High Court correctly exercised its discretion in condoning a 714‑day delay under Section 5 of the Limitation Act without properly considering the factual contention that the bank’s lawyer was appearing in court during the period of delay.
Whether the limitation period must be applied strictly in a case involving a government undertaking and public money, notwithstanding equitable considerations.

Legislation cited

Code of Civil Procedure, 1908s. Order 34 Rule 5
Limitation Act, 1963s. 5

Subjects

LimitationCondonation of delaySection 5Order 34 Rule 5Preliminary decreeFinal decreeCivil ProcedureGovernment undertakingPublic moneySupreme Court appeal

Judgment

SRI VEERA HANUMAN RICE AND FLOUR MILL AND ANR. A
v.
STATE BANK OF INDIA, RAMACHANDRAPURAM, A.P.

APRIL 24, 2000

[S. SAGHIR AHMAD AND DORAISWAMY RAJU, JJ.] B
y
Limitation Act, 1963 :

S. 5-Preliminary decree in suit for sale-Default by judgment-debtor-
Decree-holder ought to have filed application under Order 34 Rule 5 CPC for
passing final decree on or before 31.12.1991 but filed the same on 27. 7.1994
c
alongwith an application under s. 5 of the Act-Application dismissed-Revi-
sion before High Court-Contention raised by judgment-debtor that delay of
' 714 days was not properly explained, as necessary proof of the claim of Legal
Advisor as also of Advocate that they were not well during the relevant period
was wanting and during that period the Advocate was regularly appearing in D
the Court-High Court setting aside the order of lower court and allowing
application for condonation of delay-Held, though bank being a Government
Undertaking and a huge sum of public money involved, necessarily some
~ indulgence may be shown in considering claims of parties, but it is no justifi-
,..
cation to omit even considering specific and relevant factual contention of
E
judgment-debtor regarding appearance of lawyer of the bank during the rel-
evant period-Matter remitted to High Court which would restore the revision
on its file, consider the contention of judgment-debtor and decide the matter
afresh-Code of Civil Procedure, 1908-0rder 34, Rule 5.

t- CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2896 of 2000. F

From tl1e Judgment and Order dated 29.6.99 of ilie Andhra Pradesh \\
High Court in C.R.P. No. 610 of 1998.

M.N. Rao, G. Sridhar, Thim Changu and Y. Raja Gopala Rao for ilie
Appellants. G
Anil Kumar Sangal for ilie Respondents.
()

The following Order of the Court was delivered :

Special leave granted.
H
231
232 SUPREME COURT REPORTS [2000] 3 S.C.R.
A The plaintiff-Bank filed a suit against the defendants (appellants herein)
in O.S. No. 93 of 1987 on the file of the Senior Civil Judge, Ramachand-
rapuram, Andhra Pradesh, and obtained a preliminary decree on 31.12.87 for
a sum of Rs. 70,087.75. The decree holder ought to have filed an application
for passing a final decree in case of default on the part of the judgment-debtors
B on or before 31.12.91, but actually filed an application on 27.7.94 for passing
a fmal decree invoking Order 34 Rule 5, CPC, along with an application under
Section 5 of the Limitation Act, 1963 seeking for the condonation of delay of
714 days. It may be pointed out at this stage that on the filing of the suit, the
judgment-debtors filed an Insolvency Petition in LP. No. 6/87 and this came
to be dismissed on 20.11.92.
c
While dealing with the application for condonation of delay under
Section 5 of the Limitation Act made in LA. No. 1079/94, the learned
Sµbordinate Judge dismissed the same on the view that no suffici_ent cause had
been shown to condone the delay. Aggrieved, the Bank pursued the matter
before the High Court in a revision C.R.P. No. 610/98. A learned Single Judge
D
of the Andhra Pradesh High Court, while setting aside the order of the Court
below, allowed the application for condonation of delay subject to payment of
a sum of Rs. 2,000 as costs, which ultimately the counsel for the appelJants
in the Court below refused to receive, but came to be deposited in Court under
orders of the learned Judge. The learned Single Judge was of the view that the
E court below had taken not only a strict but hypertechnical view in the matter.
It is in such circumstances the judgment-debtors filed the above appeal. Notice
has been ordered and the respondent-Bank has filed a counter affidavit to
which a rejoinder has also been filed by the appelJants.

Shri M.N. Rao, learned senior counsel appearing for the appelJants,
F
strenuously contended that the High Court failed to properly apply its mind
to all the contentions raised by the appellants and the discretion exercised by
the learned Judge in the High Court in favour of the plaintiff-Bank was not
in accordance with law. It was contended that though Law of Limitation may
harshly affect a particular party but it has to be applied with all its rigour when
G the statute so ordains and the Courts cannot merely on equitable grounds,
purport to extend the period of limitation prescribed in law. All the more so,
when it has the effect of undoing substantial rights acqftired by the other party.
Argued the learned counsel further that not only there had been no proper
explanation for the delay but the necessary proof of the claim that the Legal
H Advisor and the Advocate of the Bank was not welJ during that period was
VEERA HANUMAN RICE AND FLOUR MILL v. S.B.l. 233
~ wanting, inspite of the specific plea raised by the appellants that the Bank's A
lawyer, during the very period for which the delay occurred, the condonation
of which was sought, was regularly appearing in the Comt, was not specifi-
cally considered objectively and finding recorded and consequently the order
of the High Court is liable to be set aside.

Per contra, tl1e teamed counsel appearing for the respondent-Bank B
contended that the learned Judge of the High Court was right in condoning
the delay when he was satisfied about the sufiiciency of the cause and tliat in
any event the delay in moving the Court for passing of the final decree was
on account of the bona fide and mistaken impression of the law of the time
by which they can move, and consequently no exception could be taken to the c
well merited order of the learned Single of the High Court.

We have carefully considered the submissions of the leamed counsel
appearing on either side. The respondent-Bank being a Government Undertak-
ing and since a huge sum of public money is involved, necessarily some
indulgence may by shown in considering claims of parties. But, it is no D
justification to omit even considering the specific and relevant factual conten-
tion urged by the appellants that the Bank's lawyer was really appearing in
Court regularly during those days. Since there has been such a serious
omission on the part of the High Court in considering this vital aspect, we are
-> "' of the view that the order of the learned Single Judge made in C.R.P. No. 610/
E
98 could not be sustained but should be set aside and the proceedings remitted
to the High Court witl1 a direction to restore the revision on its file and
consider the contention of the appellants made with reference to the appear-
ance in Court of the Legal Advisor and the Advocate of the Bank in other
cases, and thereafter decide the issue afresh in accordance with law and pass
appropriate orders on merit as ilie circumstances of ilie case and ilie materials F
placed on record may warrant in ilie opinion of the High Court. The appeal
is allowed accordingly and ilie matter shall stand remitted to the High Court
on the above terms. No costs.

R.P. Appeal allowed .

....