Bombay High Court
Baburao Deorao Wankhede vs Sewa Sahakari Sanstha And Anr. on 2 August, 1988
Equivalent citations: 1989(2)BOMCR15
JUDGMENT M.M. Qazi, J.
1. This writ petition has arisen out of the proceedings initiated bey the respondent No. 1 Sewa Sahakari Sanstha, under section 9 of the Maharashtra Co-operative Societies Act, before the Co-operative Court, Nagpur, 8 opponents were joined as parties by the respondent No. 1 (Sewa Sahakari Sanstha). Respondent No. 2 Babasaheb Kinkhede was joined as opponents No. 7 and the petitioner was joined as opponent No. 8. It was contended that the respondent No. 1 Society owned a truck and that it was given to respondent No. 2 on hire but Babasaheb Kinkhede, instead of paying the hire charges misappropriated the amount of the Society. The Co-operative Court passed an Award vide order dated 31st March, 1968 declaring that the amount of Rs. 25, 950/- should be recovered from the opponents Nos. 7 and 8 i.e., the respondent No. 2 and the petitioner, failing which the amount shall be recovered from the opponents Nos. 1 to 6. The award was challenged by way of appeals by opponents Nos. 1 to 7. The petitioner did not challenge the award. The appeals were partly allowed by the Maharashtra State Co-operative Appellate Court by its common judgment dated 8-7-1970, inasmuch as opponents Nos. 7 and 5 were exonerated. The petitioner filed a review petition on 13-7-1976 before the Maharashtra State Co-operative Appellate Court, challenging the order dated 8-7-1970 passed by it. The review came to be rejected by the appellate Court vide order dated 27-10-1977. The review was essentially rejected on the ground that the petitioner did not file any appeal. The order was challenged by the petitioner by way of Writ Petition No. 249/1978 before this Court. The writ petition was rejected with liberty to enable the petitioner to file fresh petition, if necessary, after exhausting remedies available under the Act. It was further observed by this Court "that the petitioner can file an appeal even now explaining delay as it appears that he had good grounds for not filing independent appeal in time." The writ petition came to be rejected as premature'. The appeal was filed by the petitioner on 13-2-1978 before the Co-operative Appellate Court, Bombay. The appellate Court rejected the appeal vide order dated 16-7-1979. The appeal came to be rejected essentially on the ground that it was barred by time by about 10 years and it is under these circumstances that this Court has been moved for quashing the order dated 16-7-1979 as well as the award dated 31-3-1968.
2. Mr. Manohar contended that the petitioner came to know about the Award dated 31-3-1968 for the first time on 9-4-1976 and thereafter he was continuously pursuing his remedy some time by way of review petition and some time by way of writ petition. He further contended that this Court allowed him to withdraw the writ petition so as to enable him to exhaust all remedies available under the Co-operative Act. This Court also made observation that the appeal could also be filed even though it was barred by time provided the delay could be properly explained. Having regard to all these facts Mr. Manohar contended that it would be too harsh to reject his request on the ground of limitation. He has invited my attention to the decision of the Supreme Court of India Collector, Land Acquisition, Anantnag & another v. Mst. Katiji & others . He has particularly relied on the observation of the Supreme Court made in para 3 of its judgment. The material portion thereof reads as under :---
"The legislature has conerred the power to condone delay by enacting section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause" employed by the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principal as it is realized that :-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. Every day's delay must be explained" does not mean that a pedantio approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of capable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
Relying on the aforesaid decision Mr. Manohar contended that the present case is a case of grave injustice and that cannot be allowed to perpetuate by throwing out the petition on the ground of limitation. Mr. Belekar appearing for the respondent contested the present writ petition essential on the ground of limitation. According to him, the appeal which was filed by the petitioner before the Co-operative Appellate Court was barred by about 10 years, and for such an inordinate delay no proper justification is forthcoming. According to him, the petitioner participated in the proceeding before the Co-operative Court and, therefore, it could not be said that he was not aware about the award passed against him on 31-3-1968. It cannot be said that this contention of Mr. Belekar is wholly without substance. It is difficult to accept the contention of the petitioner that he came to know for the first time about the award dated 31-3-1968 on 9-4-1976. But inspite of all this I feel, it is a case which would be squarely covered by the observations of the Supreme Court referred supra notwithstanding the inordinate delay. The interest of justice demands that the petition has to be decided on merit. Dismissing it on a technical ground of limitation would result in meritorious matter being thrown out at the very threshold.
3. Mr. Manohar invited my attention to the application filed by respondent No. 1 and contended that the application under section 91 of the Maharashtra Co-operative Societies Act was not tenable against the petitioner. He has also invited my attention to Explanation 2 of section 91(3), the material portion of which reads as under :-
"Explanation 2---For the purpose of this sub-section, a dispute shall include---
(i) x x x x (ii) x x x x
(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, or by any servant, past servant or deceased servant , or by its committee, past or present, whether such loss be admitted or not;"
According to Mr. Manohar, the petitioner is neither a member of the society nor its servant nor in any way connected with it and, therefore, section 91 of the Act could not be invoked against him by the society. The Co-operative Court in this regard has given inconsistent findings. At one place in para 13 of the judgment the Co-operative Court has referred to certain admission on the part of the petitioner that he has been the employee of the society but in para 22 while dealing with the case of the petitioner it has recorded a categorical finding which reads thus:---
"It is therefore, clear that all this can be explained by one thing and that is, that the society had no kind of connection with him as driver of the truck and never entrusted any duties to him as alleged by him."
It is surprising that inspite of the above finding the Co-operative Court has implicated the petitioner.
4. Mr. Manohar has invited my attention to the dispute (application) which was filed by the Co-operative Society (Sewa Sahakari Sanstha) and submitted that in the dispute there is not even a whisper against the petitioner and, therefore, even if there is any averment in evidence that will have to be totally excluded and ignored. There is much substance in this submission of Mr. Manohar. There is no basis or foundation laid by the Society against the petitioner and, therefore, he could not be found responsible for the misappropriation of the amount of the society. It is surprising that one who has actually used the truck and not pay the hire charges has been exonerated and the one who is not even remotely connected with the society has been implicated.
5. Mr. Belekar tried to support the award essentially on the ground that the petitioner was the servant of the society and, therefore , he was connected with it and consequently the application under section 91 of the Act was maintainable. However, it was possible for him to show from the application that the petitioner was in any way connected with the society, either as a servant or in any other capacity. The application is absolutely silent in regard to the connection of the petitioner with the society. In view of this it would not be possible to sustain the award, notwithstanding that the appeal was preferred by the petitioner after several years. It is a case of grave injustice and if the award and the impugned order is allowed to sustain merely because the appeal was not filed within time. It would amount to mockery of justice ; it would tantamount to legalising injustice on technical grounds. Having regard to the above facts the petitioner is allowed and the award dated 31-3-1968 as well as the appellate order dated 16-7-1979 in regard to the petitioner is quashed and set aside. Rule is made absolute in the above terms. There will be no order as to costs.