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TMI Blog2011 (3) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... e application to set aside the ex parte decree dated April 5, 2005. 2. The respondent/plaintiff filed C. S. No. 698 of 2001 for recovery of Rs.13,94,815 along with subsequent interest. In October 2001, the appellant engaged a counsel to represent their case and had also given the vakalat. For non-filing of written statement, the suit was decreed ex parte on April 5, 2005. The appellant filed an application to set aside the ex parte decree along with A. No. 4291 of 2010 to condone the delay of 1,932 days in filing the application to set aside the ex parte decree. The application was filed on the ground that by the order dated September 6, 2001, the appellant-company was declared as sick company by the Board for Industrial and Financial Reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter has been sent by the respondent on July 31, 2006 and that in spite of receipt of the same, the appellant had not responded to the same, the learned single judge held that the appellant had knowledge of the decree. The learned single judge further held that once the defendant had knowledge of the decree, defendant ought to have taken steps to set aside the decree and the inordinate delay has not been satisfactorily explained. 5. Challenging the impugned order, Mr. V. Raghavachari, learned counsel for the appellant contended that in view of the BIFR proceedings where by an order dated September 6, 2001, the appellant-company had been declared as sick company and in view of bar under section 22 of the SICA, no proceedings could continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunication either from the BIFR or from the appellant about the pendency of Case No. 311 of 2001. According to the respondent, its name has not been included in the list of creditors filed before the BIFR and the decree passed by this court in C. S. No. 698 of 2001 has not been brought to the notice of the BIFR. Even though, the proceedings in the BIFR has been averred in the affidavit, the learned single judge did not advert to the same. We also do not propose to express any opinion on the proceedings said to be pending before the BIFR and the effect of the same on the suit. 9. Point falling for consideration is whether the appellant had notice of the decree and the delay has been satisfactorily explained. As pointed out earlier, on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and that in an application for condonation of delay "sufficient cause" should receive liberal construction so as to advance substantial justice. While condoning the delay, the discretion has to be exercised to advance substantial justice. 12. Though a liberal approach has to be made in a matter of condoning delay in filing appeals, it must not give a licence to litigants to ignore the statutory provisions, which mandates that application has to be filed within a particular time. Liberal approach is also not a licence to encourage gross negligence, irresponsible and inactive attitude of the party. However, in every case of delay there can be some lapse on the part of the litigant. That alone is not enough to turn down his plea and to shut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n), in our considered view, no negligence can be attributed to the appellant. 15. When the defendant has alleged non-receipt of the said letter dated July 31, 2006 and urges the same for not taking steps, the reasons stated by the appellant do not appear to be false or frivolous. It must be remembered that in every case of delay, there is some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea. As held by the Supreme Court in N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. 16. In our considered view, the learned single judge did not keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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