@JUDGMENTTAG-ORDER
A.P. Lavande, J.@mdashHeard Mr. Tamba, learned Counsel for the respondents. The applicant seeks condonation of delay of 11 days in filing appeal against the order dated 6th May, 2010 and corrigendum dated 9th August, 2010 passed by the Civil Judge, Senior Division, Ponda in Inventory Proceedings No. 6/2010/A.
2. It is the case of the applicant that although she was interested party in Inventory Proceedings no. 6/2010/A she was not at all cited to take part in the proceedings and the order dated 6th May, 2010 passed by the Inventory Court was passed without any notice to her and she came to know about the decision given through her husband, who happened to be in the Court on 28th June 2010. Thereafter, she applied for certified copies of the roznama on 29th June, 2010 which was ready on 1st July, 2010. Thereafter, the applicant applied for certified copy of the vakalatnama on 9th July, 2010 and the same was ready on 13th July, 2010. Thereafter, the applicant applied for certified copy of the order dated 30th July, 2010 which was ready for delivery on 7th August, 2010 and actually delivered on 11th August, 2010. Thereafter, the appeal was filed on 23rd August, 2010 and the present application for condonation of delay was filed on 27th September, 2010. The applicant has further stated that she came to know about passing of the judgment in Inventory Proceedings on 3rd July, 2010, when she obtained certified copies of the roznama. According to the applicant, since she was not cited in the Inventory Proceedings nor she was given any notice in the proceedings, the impugned order is liable to be set aside and the delay in filing the application, deserves to be condoned.
3. In reply filed by respondent no. 2, it is the case of the respondents that the applicant has made false and incorrect statement in the application for condonation of delay inasmuch as the applicant had made contrary statement in the application for condonation of delay that she came to know about the Inventory Proceedings from her husband whereas in the main appeal, the applicant has stated that she came to know about the order through friend of her husband from Ponda, who happened to be in the Court in Ponda on 28th June 2010. It is further the case of the respondents that Advocate Nilima Gaude represented all the parties including the applicant in the Inventory Proceedings and all the interested parties were notified about the progress of the proceedings through Advocate Gaude. It is further the case of the respondents that the properties which are subject matter of the proceedings were allotted to respondent no. 2 being the highest bidder of 1/4th share and the sum of Rs. 12,25,000/- was due and payable by him to the applicant, who is his sister, accordingly, he sent a cheque bearing No. 779771 dated 22nd June, 2010 drawn on Bicholim Urban Co-operative Bank Limited for an amount of Rs. 12,25,000/- in favour of the applicant which was received by her on 25th June, 2010. The applicant further encashed the cheque drawn in her favour and the same has been credited to her account. A copy of the letter dated 5th January, 2011 addressed by the Bank to respondent no. 2 informing him that the cheque for an amount of Rs. 12,25,000/- in favour of the applicant has been passed by the bank on 16th July, 2010, is placed on record. It is, therefore, the case of the respondents that the applicant has accepted the amount due in terms of the impugned order and without disclosing this fact, the applicant has filed the present appeal along with an application for condonation of delay and as such, the delay does not deserve to be condoned since the applicant is not entitled to challenge the impugned order after taking benefit of the said order.
4. In affidavit in rejoinder filed by the applicant, in paragraph 18, she has stated that there is no deposit of owelty money and on that count the licitation has no effect. She has further stated that no receipt as regards the amount of Rs. 12,25,000/- has been given by her to respondent no. 2 at any time and, therefore, she has not received any amount in the Inventory Proceedings. It is further her case that wrong address was shown in the Inventory Proceedings and at no point of time, she was served in Inventory Proceedings.
5. Mr. Tamba, learned Counsel appearing for the applicant submitted that the delay is of only 11 days and having regard to the settled law that the term ''sufficient cause'' has to be liberally construed, the delay of 11 days in filing the appeal deserves to be condoned and refusal to condone the delay would cause serious prejudice to the applicant and the applicant would be deprived of challenging the Inventory Proceedings which are patently illegal and have been conducted without any notice to the applicant. Learned Counsel further submitted that the merits of the case cannot be gone into at this stage and the applicant has shown sufficient cause for condoning the delay. In support of his submissions, Mr. Tamba relied upon the following judgments :
(i)
(ii)
6. Per contra, Mr. Lotlikar, learned Senior Counsel for the respondents submitted that the applicant has not come to this Court with clean hands and has suppressed the fact that all the interested parties are represented by the same Advocate Nilima Gaude, but vakalatnamas given in favour of number of parties are missing from the file. Learned Counsel further submitted that the applicant, having accepted the amount of Rs. 12,25,000/- from respondent no. 2 in terms of the impugned order dated 6th May, 2010, is not entitled to challenge the order by suppressing this fact. Mr. Lotlikar submitted that the applicant has given two different versions about her coming to know about the impugned order.
7. I have carefully considered the rival submissions and perused the record and the judgments relied upon.
8. In the case of Collector, Land Acquisition, Anantnag (supra), the Apex Court has held that in condoning the delay the Court has to adopt liberal and justice oriented approach.
In the case of Ram Nath Sahu (supra), the Apex Court has held that term ''sufficient cause'' should be given liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. There is no strait jacket formula for finding fault with the cause shown, if sufficient cause is made out; normally acceptance of explanation furnished must be the rule and refusal, an exception.
9. No doubt, in the present case, the delay is of only 11 days. However, it is the case of the respondents that the applicant has suppressed the material facts from this Court and, therefore, although the delay is of few days, the applicant is not entitled for condonation of delay. In so far as the fact that the applicant was represented in Inventory Proceedings by Advocate Nilima Gaude is concerned, there is nothing on record to substantiate this stand taken by the respondents. According to the respondents, respondent no. 2 being the highest bidder was liable to pay the amount of Rs. 12,25,000/- to the applicant towards her share and he accordingly sent a cheque on 22nd June, 2010 drawn on Bicholim Urban Co-operative Bank Limited which was received by the applicant on 25th June, 2010 and the same was encashed by the applicant. This fact stands corroborated by the letter dated 5th January, 2011 issued by Bicholim Urban Co-operative Bank Limited to respondent no. 2. In affidavit in rejoinder filed by the applicant, the applicant has taken stand that owelty money is not deposited and on that count licitation has no effect. The applicant has not specifically denied the receipt of amount of Rs. 12,25,000/- by way of cheque as stated by respondent no. 2, but she has stated that she has not given any receipt to respondent no. 2 and, therefore, she has not received any amount in Inventory Proceedings. In the absence of any explanation coming from the applicant that the said amount was received towards some other transaction, I have no hesitation to accept the stand taken by respondent no. 2 that in terms of the impugned order the applicant has received the amount of Rs. 12,25,000/- towards her share. This being the position, the applicant is not entitled to challenge the order dated 6th May, 2010 and moreover, in the event the said amount was received by her from respondent no. 2, the applicant ought to have given explanation explaining the circumstances in which she received the said amount from respondent no. 2. In the absence of any such explanation from the applicant, the only legitimate inference which can be drawn is that the applicant has received the amount in terms of the impugned order which the applicant was bound to state in the application for condonation of delay. The applicant has chosen not to state this fact in the application which ought to have found place in the application for condonation of delay. Moreover, in the affidavit filed along with the appeal, the applicant has stated that she came to know about the inventory proceedings initiated only on 28th June, 2010 through a friend of her husband from Ponda whereas in the affidavit filed along with the application for condonation of delay, the applicant has stated that she came to know about the inventory proceedings on 28th June, 2010 from her husband. Therefore, although the delay is marginal, the applicant does not deserve any indulgence from this Court in exercise of discretionary jurisdiction u/s 5 of The Limitation Act. In the result, therefore, I do not find any ground to condone the delay of 11 days in filing the appeal. Consequently, the application is dismissed with costs which are quantified at Rs. 1,500/-.
