Madras High Court
Indian Oil Corporation Ltd., Madras vs Mrs. Sakuntala Ganapathy Rao ... on 6 July, 1998
Equivalent citations: 1998(3)CTC170
ORDER Judgement Pronounced by C. Shivappa, J.
1. The petitioner herein, namely, The Indian Oil Corporation Limited, has challenged the order passed in O.P. No. 274 of 1991 dated 18.9.1991. The grievance of the petitioner is that the learned Judge has no jurisdiction to interfere with the case of the consent award modifying the interest portion from 19% to 12% and that he has erred in not granting interest for the pre- reference period and restricting the interest claim only from the date of the award.
2. Along with the Memorandum of Appeal, the petitioner herein has filed an application under section 5 of the Limitation Act to condone the delay of 64 days in filing the appeal.
3. It is a general principle in the relevant rules/Statutes that an action against a judgment must be brought promptly when once the aggrieved party becomes aware of the existence of the judgment against him. Where the party is not under disability when he was aware of the judgment, the running of the time will not be suspended and a right is going to be created if the time stipulated expires. The time within which the action may be brought is to be measured from the date on which the aggrieved party had the knowledge of the judgment and also to weigh the nature of the disability that prevented him to invoke the jurisdiction questioning the judgment. If the explanation offered is unsustainable and when a right is created in favour of the party in whose favour the judgment is there, the right cannot be taken away by a delayed action.
4. While dealing with an application under Section 5 of the Limitation Act for condoning the delay in filing appeal, it is relevant to bear in mind two important considerations, as held in Ramlal v. Rewa Coalfields Ltd., , viz. the expiration of limitation for filing the appeal gives rise to a legal right in favour of the other party and such legal right should not be light-heartedly disturbed; and secondly, the discretion given to the Court to condone such delay ought to be exercised so as to advance substantial justice when no negligence or inaction nor want of bonafides is imputable to the appellant. The period for preferring an appeal cannot be extended simply because the appellants case is hard and calls for sympathy, nor will the Courts extend the period of limitation merely out of benevolence to the party seeking relief. A Court granting indulgence must be satisfied that there was diligence on the part of the appellant and that he was not guilty of any negligence what so ever. Ofcourse, Court should not be too strict as it might well defeat the ends of justice. Where there is no sufficient cause for condoning the delay having regard to the position of the party that too, when it is a corporation having assistance of best of men to conduct its affairs, should not be condoned as it amounts to a case of discretion not being exercised judicially. If there is no support by any evidence adduced for delay, the application therefor ought to be rejected. The word "sufficient cause" cannot be construed liberally merely because the party in default is the Government or an institution. In order to take a practical view of the working of a Government or an institution to the slow motion process of its wheels, there must be sufficient explanation from the source at which the delay occurred and the reasons for such delay. In the absence of satisfactory explanation of the delay by the institution the delay need not be condoned. "Sufficient cause" must be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay, which a party could have avoided by the exercise of due care and attention cannot be a sufficient cause. In other words, in showing sufficient cause for condoning the delay, the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. In today's complex world of giant corporations like Oil Corporation with its vast infrastructural organisation, ability, facility and equipment, not acting diligently, even if its wheels are slow in process, not even a plausible explanation supported by material, speaks of non-diligence and not a case for condoning delay.
5. It is settled in law that the appellant has to satisfy that the delay was due to sufficient cause. In United India Insurance Co.Ltd v. Parvin Paul and another 1993 (1) L.W. 68 DB, this Court has taken the view that in case of delay set up by a busy body, like the applicant/petitioner herein, it has to be explained properly and non-explanation disentitles them to approach this Court. Normally a Government Undertaking cannot be equated to a private litigant. They are expected to give details with regard to delay. At para 6 of the affidavit, except a bald statement there is no explanation as to when the copy of the order was received and by whom, if so, as to the manner why and how the delay had been caused. In the absence of proper explanation with details regarding delay, we find that there is no sufficient cause to condone the delay of 64 days and the same is fatal. More stating "administrative delay" does not constitute sufficient cause and such an explanation is liable to be rejected.
6. Though we have reached a conclusion that there is no "sufficient cause" to condone the delay, having heard the counsel for the parties and having considered the facts and circumstances of the case and the contentions involved on the subject matter of the appeal, we would like to express our view. From the records it emerges that the husband of the respondent herein was serving in the military, and on humanitarian ground, the respondent was granted a licence to do. business in gas cylinders and she defaulted in payment and the matter was referred to an Arbitrator. The Arbitrator passed the award granting interest from the date of the award till its realisation at the rate of 19%. The second respondent in O.P. No. 91 of 1989 has filed O.P. No. 274 of 1991 under Sections 30 and 33 of the Arbitration Act, hereinafter referred to as 'the Act' to set aside the award of the Arbitrator dated 6.1.1989, inter alia contending that the awarding of interest on the principal sum is wholly illegal and no interest can be awarded for any period prior to his appointment as an Arbitrator and the award granting interest for the period mentioned in it is vitiated as invalid as it is against the provisions of the Act, the Interests Act of 1978. She further contended that when there is no provision for payment of interest in the distributorship agreement dated 28.9.1982 between the petitioner and the respondent Corporation providing for arbitration in the event of disputes between the parties, alternatively contended that in any event the rate of interest at 19% p.a. is exhorbitant and excessive. The learned Judge has held that when a separable portion of the award is bad, the remainder of the award, if good, can be maintained, observing that by giving effect to a part of the award in this case, no prejudice is caused to the Indian Oil Corporation and in fact they stand to benefit to a greater extent on the dismissal of the distributor's various claims. It was further observed that "the claim of the distributor at the time of hearing for reduction in rate of interest from 19% to 12% is also not seriously disputed by the learned counsel for the Indian Oil Corporation. However, the learned counsel said that it is for this Court said that it is for this Court to reduce the rate of interest if this Court genuinely feels that the distributor deserves such concessional rate taking into account of the fact and circumstances of the case and the payment of entire sum awarded by the Arbitrator in instalments. This Court is of the view, the Distributor deserves sympathetic treatment, since this Court sees the bona fide intention on the part of the distributor in settling the amount (principal) awarded to Indian Oil Corporation". and accordingly modified the award reducing the rate of interest from 19% to 12% and granted six months' time to make the payment failing which to pay interest at the rate of 19% per annum on Rs. 3,22,115 from 6.1.1989 to 9.9.1991. It is submitted by the respondent that the entire principal amount with 12% interest was paid in the year 1991 and now she is no longer doing any business.
7. In M/s Hind Builders v. Union of India, , the Apex Court has held that the party is not entitled to interest for the pre-reference period and pending proceedings, but from the date of the award which should be taken as the date of its making or its publication.
8. In Secretary, Irrigation Department v. G.C. Roy, , it has been held, "it is made prospective in operation which means that the decision shall not entitle any party shall it empower any Court to reopen proceedings which have already become final". The entire principal amount with 12% interest was already paid in the year 1991 and the respondent is no longer doing the business. The decision in State of Orissa v. B.N.Agarwalla, which entitles to claim interest for pre-reference period, if applied, it amounts to reopening the claim already closed or paid. Therefore, the applicant was not put to any loss when the party has paid the entire amount. The question would be whether she has to be burdened with interest for pre-reference period, when the decision in Secretary, Irrigation Department v. G.C. Roy, contemplates that it has to be dealt with prospectively only to pending proceedings. Even on the justness of the matter there is nothing much in favour of the applicant.
9. Where liability already discharged, complying with Court direction prior to change in law, reopening the claim amounts to unsettling the settled right or claim, rather does not advance substantial justice between the parties. Both from the facts of the given case, keeping in view the substantial justice between the parties and also for want of proper explanation or supporting materials, the delay of 64 days in filing the appeal we are of the view that the petition under Section 5 of the Limitation Act is liable to be dismissed. Accordingly, it is dismissed but without costs. Consequently, the appeal does not deserve consideration.