Karnataka High Court
M.G.Jagadish Since Deceased By Lrs vs The Additional Registrar Of ... on 6 December, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.24590 OF 2015 (CS-RES)
BETWEEN
1. M.G.JAGADISH SINCE DECEASED BY LRS
M.J.VIJAYALAKSHMI,
WIFE OF LATE M.G.JAGADISH,
AGED ABOUT 65 YEARS,
RESIDING AT NO.369 (5) 8TH CROSS,
10TH MAIN, 1ST BLOCK,
JAYANAGAR,
BANGALORE 560011
2. AKHILA D ANANTHRAM
D/O LATE M.G. JAGADISH,
AGED ABOUT 41 YEARS,
RESIDING AT NO.125,7TH MAIN,
9TH CROSS,GOKULAM II STAGE,
MYSORE
3. VINAY M.JAGADISH
S/O LATE M.G. JAGADISH,
AGED ABOUT 38 YEARS,
RESIDING AT NO.369 (5) 8TH CROSS,
10TH MAIN, 1ST BLOCK,
JAYANAGAR,
BANGALORE 560011
...PETITIONERS
(BY SRI ARVIND KRISHNA G, ADVOCATE FOR
SRI TANMAYEE RAJKUMAR, ADVOCATE)
AND
1. THE ADDITIONAL REGISTRAR OF
CO-OPERATIVE SOCIETIES (I & M)
2
NO.1, ALI ASKER ROAD,
BANGALORE 560052
2. THE BANGALORE CO-OPERATIVE INDUSTRIAL
ESTATE LIMITED,
REPRESENTED BY ITS SECRETARY,
NO.4, II FLOOR, AMAR TOWERS,
1ST CROSS,GANDHI NAGAR,
BANGALORE 560009
3. B.C. REDDY
CHAIRMAN,
B.C.I.E LIMITED,
NO.4, II FLOOR,AMAR TOWERS,
1ST CROSS, GANDHI NAGAR,
BANGALORE 560009
MAJOR
4. K. CHINNASWAMY
SUB COMMITTEE MEMBER & VICE CHAIRMAN,
NO.4, II FLOOR, AMAR TOWERS,
1ST CROSS,GANDHI NAGAR,
BANGALORE 560009
MAJOR
5. PRASHANT N PATEL
SON OF LATE NAGIN BHAI D. PATEL,
AGED ABOUT 40 YEARS,
RESIDING AT NO.484, 15TH MAIN,
R.M.V. EXTENSION,
BANGALORE 560080
...RESPONDENTS
(BY SRI SPOORTHY HEGDE, HCGP FOR R1
SRI BADRI VISHAL, ADVOCATE FOR
SRI H SRINIVAS RAO, ADVOCATE FOR R3, R4 & C/R5
R2 SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 31.3.2015 PASSEDBY THE KARNATAKA APPELLATE
TRIBUNAL, BANGALOER IN APPEAL NO. 588/1999 VIDE ANN-E AND
ETC.
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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 17.11.2023 COMING ON FOR 'PRONOUNCEMENT OF
ORDER' THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The present writ petition is filed challenging the judgment dated 31.3.2015 passed in Appeal No.588/1999 by the Karnataka Appellate Tribunal, Bangalore (hereinafter referred to as 'the Tribunal') and for the other reliefs.
2. The relevant facts necessary for consideration of the present petition are that one Sri M.G.Jagadish (hereinafter referred to as 'the deceased'), a member of the second respondent - society, was allotted an industrial site bearing No.7 in Vijinapura Village, Krishnarajapura Hobli, Bengaluru South Taluk, measuring east to west 50 feet, north to south 100 feet in the Industrial layout called "OMR Layout" and possession of the said site was handed over to him vide Possession Certificate dated 17.6.1970. Construction in the said site was required to be undertaken within a specified time frame. Having failed to do so, the Board of the second respondent - society vide resolution dated 24.8.1989 cancelled the allotment of the said site and the said cancellation was communicated vide letter dated 8.9.1989 4 which was admittedly received on 12.9.1989. On 9.8.1996 a dispute was raised by the deceased before the Additional Director, Department of Industries and Commerce, which was the wrong forum for challenging the same and vide endorsement issued in August, 1997, the same was returned.
3. Thereafter, on 11.8.1997 a dispute was raised under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act'). An application was filed for condonation of delay in prosecuting the dispute which was dismissed vide order dated 27.7.1999. Being aggrieved, Appeal No.588/1999 was preferred by the deceased before the Tribunal, which was dismissed. Hence, WP No.1392/2000 was filed against the order passed by the Tribunal, which was allowed by this Court vide order dated 11.6.2002 holding that the appeal was maintainable and the matter was remanded to the Tribunal for consideration. Being aggrieved, the society preferred WA No.3857/2002 before a Division Bench of this Court, which was dismissed on 1.10.2002. Subsequently, the Tribunal by order dated 12.1.2007 allowed Appeal No.588/1999, condoned the 5 delay in raising the dispute and remanded the matter to the first respondent for disposal of the dispute on its merits.
4. In the meantime, vide registered Sale Deeds dated 10.11.2000 and 23.11.2000, respondent Nos.3 and 4 who were allotted the sites by the society sold the same in favour of the fifth respondent. Hence, respondent Nos.2 to 5 filed WP No.8917/2007 challenging the order dated 12.1.2007 passed by the Tribunal in Appeal No.588/1999, which was dismissed by order dated 28.1.2009. Being aggrieved, respondent Nos.3 and 4 preferred WA No.629/2009 which was allowed and the order in WP No.8917/2007 and the order dated 12.1.2007 passed in Appeal No.588/1989 were set aside and the matter was remanded to the Tribunal for fresh consideration. The SLP filed by the petitioners against the judgment passed in WA No.629/2009 was rejected by the Hon'ble Supreme Court.
5. Sri Jagadish having expired on 31.1.2004, the petitioners being his wife and children have come on record as his legal representatives and have been prosecuting the proceedings.
6. Pursuant to the order passed in WA No.629/2009 the Tribunal heard the parties in Appeal No.588/1999 and by order 6 dated 31.3.2015 dismissed the said Appeal. Being aggrieved, the present writ petition is filed.
7. Sri R.V.S.Naik, learned Senior counsel for the petitioners contends that the Tribunal erred in considering the matter afresh consequent to the remand made in WA No.629/2009 and ought to have noticed the earlier findings recorded in the order dated 12.1.2007. That the Tribunal erred in not considering the scope of remand of the matter by the Division Bench. It is further contended that the limitation for condoning the delay starts from 12.9.1989 and sufficient reasons having been set forth, the same ought to have been condoned. In support of his contentions, the learned Senior Counsel relies on the following decisions:
i. Sesh Nath Singh & Anr., v. Baidyabati Sheoraphuli Co-operation Bank Limited and Another1;
ii. Ramesh Govind Kulkarni and ors., v. Karnataka Appellate Tribunal and others2;
iii. Collector, Land Acquisition Anantnag and Anr. V. Katiji and Ors., 3;
iv. Perumon Bhagvathy Devaswom, Perunadu Village v.
Bhargavi Amma and Ors., 4;1
(2021) 7 SCC 313 2 1995 SCC OnLine Kar 217 3 (1987) 2 SCC 107 4 (2008) 8 SCC 321 7 v. Sridevi Datla v. Union of India and Ors., 5;
vi. Kalpraj Dharamshi and Anr., v. Kotak Investment Advisors Limited and Anr., 6.
8. Per contra, learned counsel Sri Badri Vishal appearing for second respondent - society justifying the judgment passed by the Tribunal submits that the delay commences from 12.9.1989, the period of limitation being 6 years under Section 70A of the Act, expired on 9.8.1995 and there was a delay of 11 months in raising the dispute and the same has not been adequately explained. That the petitioners have failed in demonstrating that there was sufficient cause to condone the delay. He further submits that the Tribunal having considered the aspect of the matter and having rejected the appeal of the petitioners, this Court ought not to interfere with the same in exercise of its jurisdiction contained under Article 227 of the Constitution of India. In support of his submissions, the learned counsel relied on the following decision:
i) B and T AG v. Ministry of Defence7. 5 (2021) 5 SCC 321 6 (2021) 10 SCC 401 7 2023 SCC OnLine 657 8
9. The submissions made by the learned counsel for the parties have been considered and the material on record has been perused. The question that arises for consideration is, whether the judgment of the Tribunal dated 31.3.2015 in dismissing the appeal and the order dated 27.7.1999 passed by the first respondent - Additional Registrar in dismissing the application for condonation of delay are erroneous and are liable to be interfered with?
10. The relevant facts are undisputed inasmuch as the deceased was allotted an industrial site by the second respondent
- society, as also the fact that vide Board Resolution dated 24.8.1989 of the second respondent - society, the said allotment was cancelled, which cancellation was communicated on 12.9.1989. It is further undisputed that the deceased had raised a dispute before the Additional Director, Department of Industries and Commerce, on 9.8.1996, who was admittedly not the jurisdictional authority for adjudicating the dispute and by endorsement dated 11.8.1997 the same was returned, consequent to which, the dispute was raised before the first respondent Additional Registrar. It is further not in dispute that 9 consequent to the dispute being presented before the first respondent, the deceased filed an application under Section 70 of the Act read with Section 5 of the Limitation Act, 1963 to condone the delay which application was dismissed by the first respondent vide order dated 27.7.1999 which was the subject matter of challenge before the Tribunal in Appeal No.588/1999.
11. During pendency of the Appeal No.588/1999, the said Jagadish having died, the petitioners being his wife and children have come on record and have prosecuted the said proceedings since then. The Tribunal by its judgment dated 12.1.2007 allowed the appeal, set aside the order dated 27.7.1999 passed by the first respondent and condoned the delay in filing the appeal. While allowing the appeal, vide its order dated 12.1.2007, the following findings are recorded:
i) In this case, according to the appellants there was no delay in filing the dispute before 1st Respondent and even if there is delay, it is due to filing of the dispute before the wrong forum and also due to bonafide belief that the dispute filed is within time, the appellant did not file application to condone the delay along with the main dispute before Respondent No.1.10
ii) The delay if any as contended by Respondent Nos.2 to 4 i.e., 01 year 11 months, the delay has to be condoned as the appellants have shown sufficient cause.iii) The contentions of Respondent Nos.2 to 4
that as per Section 109 of the Act, it is applicable only to filing of any appeal or application for revision and not for original dispute, cannot be accepted.
12. The said order dated 12.1.2007 was the subject matter of challenge in WP No.8917/2007 by respondent Nos.3 to 5 herein and vide order dated 28.1.2009, the said writ petition was dismissed with a direction to the first respondent to dispose of the dispute pending before it as expeditiously as possible, in any event not later than 3 months from the date of receipt of copy of the said order. The said order passed in the writ petition was the subject matter of challenge in WA No.629/2009. A Division Bench of this Court by its judgment dated 4.10.2012 allowed the appeal, set aside the order passed in WP No.8917/2007 and the judgment dated 12.1.2007 passed by the Tribunal in Appeal No.588/1999 and remanded the matter to the Tribunal for fresh consideration in accordance with law. It is relevant to note the 11 findings recorded by the Division Bench, the relevant portion of which reads as follows:
"11. Now coming to the question of delay, the KAT has set aside the order of the Additional Registrar of Co-operative Societies in the dispute filed under Section 70 of the Act. On perusal of the entire order of the KAT, we are of the view that KAT has not considered objections raised by the appellants. When an application is filed under Section 70-A of the Act, it cannot be strictly considered as an application filed under Section 5 of the Limitation Act. One of the grounds urged by Sri Kasturi is that the tribunal did not consider the objections filed by the appellants. Without considering the objections if the appeal has been allowed by the Tribunal such order has to be held as an illegal order and will not stand to the scrutiny of the Court. The learned Single Judge has not considered this vital aspect of the matter. Therefore, we are of the view that the writ petition has to be allowed and the order of the learned Single Judge as well as the order of the Karnataka Appellate Tribunal, Bangalore in Appeal No.588/1999 dated 12.01.2007 are to be set aside."
13. It is relevant to note that the order dated 4.10.2012 passed in WA No.629/2009 was challenged before the Hon'ble Supreme Court in SLP (C) No.10129/2013, which was dismissed on 18.3.2013. The Tribunal, consequent to the remand, by its judgment dated 31.3.2015 dismissed the appeal. While dismissing the said appeal the following findings are recorded:
i) While dealing with the proceedings which has been kept in mind the legal obligation under the law of limitation which is in respect of jurisdiction aspect of the case and when there is a demand for speedy disposal of cases, the Court should be careful in 12 entertaining the proceedings which are clearly barred by time and save sufficient time for adjudicating of the dispute which are in time;
ii) In the instant case, it is an admitted fact that on 12.09.1989 is the date on which the appellant has received a letter from Respondent No.2 - Society with regard to the cancellation of allotment of site and that is the crucial date for commencing the limitation;
iii) The contention of the appellant that the cause of action arose on 04.03.1996 when the Respondent No.1 passed the resolution dated 04.03.1996 and allotted the site bearing No.7 in favour of Respondent Nos.3 and 4 cannot be accepted as he has sought the main relief for cancellation of resolution passed by Respondent No.2 - Society cancellation of allotment of site;
iv) It appears, after three years of raising the dispute, the appellant has filed an application for condonation of delay which cannot cure the defects of running of time from 12.09.1989 on which date the appellant has acknowledged the cancellation of site by Respondent No.2 - Society;
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v) Accepting the reasons, the appellant has sought remedy in the wrong forum, all other reasons given by him in the affidavit appears to be flimsy and hollow;
vi) The period between 09.08.1996 and 11.08.1997 during when the dispute was being prosecuting before the wrong forum should be excluded;
vii) The Society initially cancelled the possession certificate on 20.08.1979. Thereafter at the written request of the appellant vide his letters dated 13.11.1979 and 25.06.1984 the Respondent No.2 - Society took a sympathetic view and asked the appellant to meet the architect to get the plan of the building prepared. Therefore, the allotment of the industrial site was cancelled for the 2nd time on 24.08.1989 and the same was notified to the appellant by letter dated 08.09.1989 which was acknowledged by the appellant on 12.09.1989. Thus, the conduct of the appellant shows he is not diligent and there is delay and laches on the part of the appellant to abide by the condition imposed by the Society;
viii) The dispute was filed before the Additional Director of Industries commerce on 09.08.1996. However, non filing of delay application before the 14 Additional Director of Additional Industries and Commerce cannot be accepted;
ix) The time runs from 12.09.1989 on which date, the appellant acknowledged cancellation of a site by the Society and the Dispute ought to have been filed on or before 11.08.1997 which is the six years limitation provided under the Act. But the Appellant has filed application for condonation of delay on 06.03.1999 which cannot be accepted at all as he is not diligent while raising a dispute though he is having knowledge of cancellation of sites acknowledged by him on 12.09.1989;
x) The delay which is almost was one year, has not been satisfactorily explained and there is no sufficient cause for condoning the delay, though the delay of raising a dispute before the wrong forum between 09.08.1996 and 01.08.1997 can be excluded;
xi) Section 119 of the Act provides for the provision of Sections 4, 5, 12 and 14 of the Limitation Act shall be applicable to the filing of any appeal or application for revision under the Act which impliedly bars the application of the said provision for raising of the dispute has brought separate provision provided for condoning the delay in raising the dispute. Hence, the applicability of Section 14 of the Limitation Act for 15 excluding the time spent in wrong forum is also doubtful.
14. From the aforementioned, to appreciate the fact situation, it is relevant to note the following dates:
Sl. No. Dates Particulars 1 24.08.1989 In the Board Meeting of Respondent No.2 -
Society it is resolved to cancel the allotment of Site No.7.
2 08.09.1989 Respondent No.2 - Society issues a letter communicating the decision taken in its Board Meeting on 24.08.1989 3 12.09.1989 Letter dated 08.09.1989 is received by the deceased 4 04.03.1996 Respondent No.2 - Society in its sub-committee resolves to allot site No.7.
5 09.08.1996 The Petitioner raised a dispute before the Addl.
Director of Industries and Commerce.
6 11.08.1997 The Dispute raised was returned by the Additional Director and Commerce for want of jurisdiction 7 11.08.1997 The Petitioner presents the dispute before Respondent No.1, the Additional Director of Co- operative Societies (Dispute No.1106/1997-98) 8 16.03.1999 Application for condonation of delay filed.
15. The Dispute filed is under Section 70 of the Act. Section 70-A prescribes the period of limitation. Section 70-A(2) of the Act reads as follows:
"70-A. Period of limitation - (1) xxxxx (2) Notwithstanding anything contained in sub-
section (1), the Registrar may entertain a dispute referred 16 after the period specified in sub-section (1) if he is satisfied that the person making the reference had sufficient cause for not making the reference within that period.
Provided that a dispute relating to the disciplinary action against or service conditions of an employee shall be filed within a period of twelve months from the date of the order relating to such dispute.
(emphasis supplied)
16. If the relevant fact situation is to be noticed, the cause of action commences from 12.9.1989 and the dispute was filed before the Additional Director, Department of Industries and Commerce on 9.8.1996 i.e., after a lapse of 6 years 11 months. Vide endorsement issued in August, 1997, the dispute was returned. It is a matter of record that the deceased took return of the dispute papers from the Additional Director, Department of Industries and Commerce on 11.8.1997 and on the same day it was presented before the first respondent. It is a further matter of record that the application seeking condonation of delay was filed on 16.3.1999.
17. The proviso to Section 70A(2) of the Act enables the Registrar to condone the delay if sufficient cause is demonstrated. Hence, it is required to be adjudicated as to whether sufficient cause has been made out by the predecessor in interest of the 17 petitioners to condone the delay in filing the dispute. The period between 9.8.1996 to 11.8.1997 is required to be excluded since during the said period the dispute was being prosecuted by the petitioners before a wrong forum. Hence, the period between 12.9.1989 to 9.8.1996 is 6 years and 11 months. Section 70A(1) contemplates a limitation of 6 years to file a dispute under Section 70 of the Act. Hence, the delay in the present case is 11 months and it is to be considered as to whether sufficient cause has been made out to condone the said delay.
18. In the petition filed under Section 70 of the Act, apart from the action of the society being impugned on the merits of the matter regarding cancellation of allotment, it is averred in detail that the allotment was cancelled erroneously and that subsequent to the said cancellation the deceased had made various representations to the Society to reconsider its decision of canceling the allotment and to consider his request and it is specifically averred that the deceased was under a belief that a favarouble decision would be taken by the Society on his request and when the same was not done, the dispute has been filed. 18
19. In the affidavit filed in support of the application under Section 70 of the Act read with Section 5 of the Limitation Act, the deceased has deposed that there is a delay of about 10 months in preferring the dispute and while setting out the reasons, it is deposed that subsequent to the receipt of the letter of cancellation on 12.9.1989 a letter dated 6.10.1989 was written by the deceased. That, consequent to the letter dated 11.2.1991 by the society intimating refund of the amount, it is deposed that the said refund has not been accepted and letters dated 9.8.1992, 31.7.1996 and 4.3.1998 were written seeking for restoration of the site which was not considered by the society. It is further deposed that the deceased was under a bona fide impression that the request would be considered and hence, he did not raise the dispute immediately. However, consequent to the resolution dated 4.3.1996 allotting the site to respondent Nos.3 and 4 the dispute has been raised. It is further deposed that the delay of 10 months in raising the dispute is bona fide and unintentional and that more hardship and injury would be caused if the delay is not condoned and that the deponent has a good case on merits.
20. Before the Tribunal in the earlier round of litigation, the aspect which was the subject matter of adjudication was that 19 since the dispute was filed immediately after the resolution dated 4.3.1996 allotting the site to Respondent Nos.3 and 4, there was no delay in raising the dispute. However, in the present petition, it is contended by the petitioners that the period of limitation will have to be reckoned from 12.9.1989 i.e., the date on which the deceased was in receipt of the communication dated 8.9.1989 intimating the cancellation of the site.
21. Learned Senior Counsel for the petitioners has drawn specific reference to the judgments which are considered as follows:
i) In the case of Sesh Nath Singh1 the Hon'ble Supreme Court has held as follows:
"59. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute "sufficient cause" or not would be dependent upon facts of each case. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished by the appellant applicant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.
61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general 20 practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application."
(emphasis supplied)
ii) In the case of Ramesh Govind Kulkarni2 a coordinate Bench of this Court has held as follows:
"9. So far as the Appeal No. 428 of 1991 is concerned, same has been found to be belated by 92 days. But, from the records, it seems that the appellant had incorporated necessary explanation pertaining to the delay in his memo of appeal itself. It cannot be disputed that for seeking condonation of delay, even if the appeal is ex facie found to be barred by limitation, no formal application is required to be filed for seeking condonation of delay (See :
Nadubhagom N.S. Karayogam v. Gopalan Nair [1979 Ker. L.T. 166.] , Smt. Shakuntala Devi v. Banwari Lal [AIR 1977 All. 551.] , Chittaranjan Sahu v. Collector, Dhenkanal [ILR 1975 Cuttack 1347.] . Keeping in view the law as settled by the Courts if the Tribunal at all felt that there should be a separate petition for condonation of delay in the said appeal, it ought to have granted a reasonable opportunity to the appellant for filing the same. Accordingly, it is directed that if the appellant in the said appeal files a separate application either explaining that there is no delay keeping in view the respective provisions pertaining to limitation or, if there is any delay, for condoning the same on sufficient grounds being shown, the Tribunal should dispose of the same in accordance with law."
(emphasis supplied)
iii) In the case of Collector, Land Acquisition Anantnag3 the Hon'ble Supreme Court while emphasizing that 21 the Courts while considering the expression "sufficient cause"
should adopt a liberal approach to do substantial justice to the parties and when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred.
iv) The Hon'ble Supreme Court in the case of Perumon Bhagvathy Devaswom4, noticing its earlier judgments has reiterated that the word "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable. That the acceptability of explanation is the only criteria and not the length of delay.
v) In the case of Sridevi Datla5 the Hon'ble Supreme Court while considering the words "sufficient cause" in terms of Section 16 of the National Green Tribunal Act, 2010 after noticing its earlier judgments has held that each case has to be balanced on its basic facts and surrounding circumstances in which the parties act and behave.
vi) In the case of Kalpraj Dharamshi6 the Hon'ble Supreme Court, referring to Section 14 of the Limitation Act, 22 1963, after referring to its earlier judgments has held that the principles contained in Section 14 of the Limitation Act have been applied to various other enactments and has held as follows:
"67. ............ It has been observed, that when a certain period is excluded by applying the principles contained in Section 14, there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned, continues to be the stated period and not more than the stated period. It was therefore held, that the principle of Section 14, which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and pursued with due diligence but which end without a decision on the merits of the case."
(emphasis supplied)
22. In the case of B and T AG7relied on by the learned counsel for the respondent Nos.3 to 5 the Hon'ble Supreme Court considering the aspect of limitation under the provisions of the Arbitration and Conciliation Act, 1996 has held as follows:
"44. The aforesaid observations make it very clear that what is important for the Court is to find out what was the "Breaking Point" at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration.
45. The learned counsel appearing for the petitioner has placed strong reliance on para 28 of Geo Miller (supra) to fortify her submission that the "Breaking Point" was sometime in September, 2019 and not in 2016 as asserted by the respondent. What was the "Breaking Point" is a question of fact and we shall deal with this issue a little later. .... "
(emphasis supplied) 23
23. Learned Senior Counsel for the petitioners would vehemently contend that various aspects on the merits of the matter are not being argued by the petitioners to place on record as to the arbitrary manner in which the site that was allotted to the deceased has been cancelled and re-allotted to subsequent allotees and the yardstick adopted for the subsequent allotees was different and that on the merits of the matter the petitioners have a good case to set aside the cancellation of the allotment of the site.
24. Having regard to the factual scenario noticed above and the settled position of law, it is clear and forthcoming that the deceased had, consequent to the intimation of the cancellation of the allotment on 12.9.1989 was constantly communicating with the society and making a request to reconsider its decision regarding cancellation of the site. It is relevant to note that on an earlier occasion, such a request was acceded to by the society. However, only when the site was allotted to respondent Nos.3 and 4 on 4.3.1996 that, the deceased filed the dispute on 9.8.1996 before the wrong authority. Subsequently, when the dispute was 24 returned on 11.8.1997, on the same day it was presented before the first respondent.
25. Although a contention has been raised that the dispute before the first respondent having been filed on 11.8.1997 and the application for condonation of dealy was filed subsequently only on 16.3.1999, having regard to the judgments of the Hon'ble Supreme Court in the case of Sesh Nath Singh1 as well as a coordinate Bench of this Court in the case of Ramesh Govind Kulkarni2 that filing of an application for condonation of delay is not required and the Court is empowered to consider as to whether sufficient cause is made out to condone the delay, it is just and proper to consider the case of the petitioners as to whether sufficient cause has been made out.
26. As noticed above, the period of delay that is required to be explained is 11 months. This is in view of the fact that the period between 9.8.1996 and 11.8.1997 having been spent prosecuting the dispute before a wrong authority is required to be excluded having regard to the principles underlying Section 14 of the Limitation Act as well as the judgment of the Hon'ble Supreme Court in the case of Kalpraj Dharamshi6, where it has been held 25 that the principles underlying Section 14 of the Limitation Act are required to be applied.
27. Having regard to the reasons set out in the petition as well as in the affidavit accompanying the application wherein, it has been placed on record that the deceased was corresponding with the society for reconsideration of its decision for cancellation of allotment, it cannot be said that the deceased was in any manner negligent in prosecuting the dispute, more particularly having regard to the fact that on an earlier occasion a request for reconsideration was granted. Also it is to be noted that immediately consequent to the resolution dated 4.3.1996 wherein the site was allotted to respondent Nos.3 and 4, on 9.8.1996 the dispute was filed.
28. It is further noticed that the delay in filing the dispute is 11 months and it cannot by any stretch of imagination be concluded that the said delay is inordinate, tantamounting to laches and it cannot be said that there was negligence or inaction or want of bonafides on behalf of the predecessor in interest of the petitioners in prosecuting the matter. It is also to be noticed that the dispute that is required to be adjudicated is with regard 26 to cancellation of allotment of a site. Valuable rights in immovable properties are required to be adjudicated in the dispute being prosecuted by the petitioners and such rights of parties ought not to be ordinarily denied on the ground of delay.
29. The first respondent, vide its order dated 27.7.1999 while dismissing the application for condonation of delay has not considered the crux of the matter as to the period of delay and as to whether any sufficient cause has been set out. Respondent No.1 has recorded a finding that there is a delay of one year 11 months in filing the dispute and that condonation of the said delay of one year 11 months was not sought. It was further noticed that the application for condonation of delay was filed only on 16.03.2009 and that the applicant can question about the decision of cancellation of allotment but cannot question the allotment made to any/another person. The first respondent while rejecting the application to condone the delay has erred in computing the quantum of delay and holding that the delay that is required to be condoned is 1 year 11 months, also the fact that no application for condonation of delay was filed when the dispute was initially filed. In view of the same, the order of the first 27 respondent refusing to condone the delay is ex facie erroneous and liable to be interfered with.
30. The Tribunal in its judgment dated 31.3.2015 appears to have misconstrued the direction issued by the Hon'ble Supreme Court to dispose of the matter expeditiously and an indication of the same is forthcoming from the observations made at para 12 which is as follows:
"12. .... Therefore the judge while dealing with the proceedings has to keep in mind the legal obligation cause under the law of limitation which is in respect of jurisdictional aspect of the case and when there is a demand for speedy disposal of cases the court should be careful in entertaining the proceedings which are clearly barred by time and save the time for adjudication of dispute which are in time."
31. Although the Tribunal has undertaken a detailed consideration of the relevant fact situation, it has misdirected itself in not appreciating the relevant aspects in the proper perspective for the purpose of consideration of condonation of delay. The fact situation as noticed above clearly warrants that the delay be condoned and the matter in the dispute between the parties be adjudicated on its merits. Under the circumstances, the judgment of the Tribunal is also required to be set aside and the delay in filing the dispute is required to be condoned. Hence, 28 the question framed for consideration is answered in the affirmative.
32. It is also relevant to note that the dispute has been filed on 11.8.1997 and the order passed by the first respondent refusing to condone the delay was rendered on 27.7.1999 which was set aside by order dated 12.1.2007 by the Tribunal and the delay was condoned. However, due to various litigations that have been pursued by the parties, the adjudication on merits of the dispute has not yet commenced despite lapse of nearly 23 years of filing the dispute. Hence, it is expedient that a date be fixed for appearance of the parties before the Tribunal to enable adjudication on the merits of dispute in accordance with law.
33. In view of the aforementioned, the following order is passed:
ORDER
i) The writ petition is allowed;
ii) The order dated 31.3.2015 passed in Appeal No.588/1999 by the Karnataka Appellate Tribunal, Bangalore, is set aside;29
iii) The order dated 27.7.1999 passed by the first respondent rejecting the application for condonation of delay is set aside;
iv) The application filed for condonation of delay in dispute No.1106/1997-98 is allowed and the delay in filing the dispute is condoned;
v) The parties shall appear before the first respondent on 21.12.2023, consequent to which, the first respondent shall conduct further proceedings in accordance with law.
Sd/-
JUDGE nd/BS