IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53633 OF 2016 (GM-AC) BETWEEN:
SRI ASHOK KUMAR S/O SRI LALCHAND AGED ABOUT 57 YEARS RESIDING AT NO.16/2 NORTH PARK ROAD AMERICAN COLONY BANGALORE-560 001. … PETITIONER (By Mr. H V DEVARAJU, ADV.) AND:
1. SRI REVANACHARI S/O LATE PUTTACHARI AGED ABOUT 42 YEARS RESIDING AT ADICHUCHANAGIRI MATTA B M ROAD ARCHAKARAHALLI RAMANAGARA TALUK AND DISTRICT – 571511.
2. NEW INDIAN ASSURANCE CO., LTD., NO.10/1 KUREJA HOUSE 1ST FLOOR KUMARA KRUPA ROAD BANGALORE-560 001. … RESPONDENTS (By Mr. K SURYANARAYANA RAO, ADV. FOR R2 R1 SERVED AND UNREPRESENTED) - - -
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for the connected records relating to Annex-K order, dtd.15.4.2016 passed on I.A. Under Section 5 of Limitation Act, in MISC. No.58/2012 on the file of The Principal Senior Civil Judge and CJM, at Ramanagaram and etc.
This Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.H.V.Devaraju, learned counsel for the petitioner.
Sri.K.Suryanarayana Rao, learned counsel for the respondent No.2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 15.04.2016 passed by the Motor Accident Claims Tribunal by which the petition filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Act’ for short) as well as the application for condonation of delay, has been rejected.
4. Facts giving rise to the filing of the writ petition briefly stated are that on 21.12.2010 the exparte award was passed against the petitioner. It is the case of the petitioner that he came to know about the exparte award some time in the first week of November 2012. When he received the notice of the execution proceedings, thereafter the petitioner submitted an application on 17.11.2012 for obtaining the certified copy of the award and filed objection under Order IX Rule 13 of the Code along with the application under Section 5 of the Limitation Act. However, the Tribunal, by order dated 15.04.2016 inter alia held that the petitioner has not made out any sufficient ground for condonation of delay. Accordingly, the said petition along with the application for condonation of delay was dismissed.
5. Learned counsel for the petitioner submitted that the petitioner was never served with the summons of the proceedings instituted by the claimants and there is no endorsement on record to show the service of notice on the petitioner. It is further submitted that the Tribunal has taken a hyper technical view of the whole matter and ought to have appreciated the expression ‘sufficient’ should receive liberal consideration so as to advance cause of delay. On the other hand, learned counsel for the respondent No.2 supported the impugned order.
6. I have considered the submissions made by both the sides and have perused the record. From perusal of the record, it is evident that as per the case of the petitioner, he was never served with summons of the proceeding instituted by the Tribunal. There appears to be no endorsement on record showing service of summons with regard to the proceeding initiated by the respondent. The petitioner came to know about the award sometime in the first week of November 2012 and thereafter on 17.11.2012, he made an application for obtaining the certified copy of the award and filed a petition under Order IX Rule 13 of the Code as well as application for condonation of delay under Section 5 of the Limitation Act on 24.11.2012. Thus, in the fact situation of the case, sufficient cause was made out for condonation of delay in filing the aforesaid petition. The impugned order is therefore set aside and the application filed by the petitioner under Section 5 of the Limitation Act is allowed subject to payment of an amount of `15,000/- which shall be deposited by the petitioner before the Tribunal within a period of four weeks from the date of receipt of certified copy of the order passed today, which shall be payable to the claimants subject to have its due restitution in the event of success of the petitioner.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV