Decided on July 12,2007



S.S. Parkar, J. (Chairperson) - (1.) THIS appeal has been filed challenging the order dated 5th April, 2006 passed by the Presiding Officer of the D.R.T. -II, Mumbai rejecting an application filed by the appellant for setting aside an ex parte decree passed against the appellant on the ground that the application was time -barred in the following circumstances: The respondent Bank had filed an Original Application for recovery of debts due from the appellant and other defendants. The appellant was the original defendant No. 2. He and the defendant No. 3 were the guarantors and the Directors of the appellant No. 1 company. The appellant's wife was impleaded as the defendant No. 4 being the guarantor and the mortgagor of the flat. The summons of the Original Application were sought to be served on the appellant by registered post on the residential address of the appellant which was returned with a postal endorsement 'unclaimed'. As per the practice of the D.R.T. the copy of the judgment and order was sent on the address of the appellant which was undisputedly received by him on 25th July, 2005. Thereafter, the respondent Bank commenced the execution proceeding notice of which was admittedly served on the appellant on 11th September, 2005 and the application for setting aside the decree was filed on 18th October, 2005. In para 4(B) of the application after mentioning that the copy of the judgment and order was received by the appellant on 25th July, 2005, it is stated as follows - The recovery proceedings are shown to have been received by applicant No. 1 -Mr. Arun Kumar on 11th September, 2005 and the applicant No. 2 -Mrs. Vijaylaxmi on 11th September, 2005. There is the delay of about 16 days in filing this application and the same may be condoned in the interest of justice. Otherwise irreparable loss, harm and injury would be caused to the applicants.
(2.) IN the prayer Clause (d) of the said application it was stated that the delay if any be condoned. The said application was supported by an affidavit of the appellant wherein what was stated in the application had been reiterated and confirmed and it was prayed that the application be treated as a part of the affidavit. The D.R.T., following the judgment of the Bombay High Court in the case of Lalmani Ramnath Tiwari v. Bhimrao Govind Pawar , held that there is presumption of service of summons on the appellant as the registered post packet was returned with the postal endorsement 'unclaimed' and the appellant had not rebutted the said presumption.
(3.) THE learned Advocate appearing for the appellant argued that the delay in filing the appeal may be condoned in the interest of justice. In support of his contention he has cited judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji , wherein it is held that liberal approach has to be adopted by the Courts in considering whether "sufficient cause" has been shown or not for condonation of delay. That was a case where there was delay in filing the appeal by the State. It was held that there is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of mala fides as a litigant does not stand to benefit by resorting to delay. That was a case where appellant was the State which is stated by the Apex Court to "represent the collective cause of the community' and delay occurs 'on account of an impersonal machinery' of employees of the State who are not directly hit or hurt by the impugned judgment. That reasoning cannot be applicable to an appeal filed by an individual like the appellant.;

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