Gujarat High Court
Alcock Ashdown Gujarat Limited vs Interocean Navigation Limited on 2 February, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, A.Y. Kogje
C/CA/13607/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 13607 of
2016
In
FIRST APPEAL (STAMP NUMBER) NO. 3770 of 2016
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ALCOCK ASHDOWN GUJARAT LIMITED.....Applicant(s)
Versus
INTEROCEAN NAVIGATION LIMITED....Respondent(s)
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Appearance:
MR AUM M KOTWAL, ADVOCATE for the Applicant(s) No. 1
MR JENIL M SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 02/02/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Heard learned advocates for the parties.
2. This Civil Application is preferred seeking condonation of delay of 266 days in filing First Appeal arising out of judgment and decree dated 19.12.2015/1.1.2016 in Special Civil Suit No.214 of 1999 by learned Additional Senior Civil Judge, Court No.17, Bhavnagar.
3. Learned advocate for the applicant has relied on the averments made on oath by the Executive Director of the applicant company so stated in paragraphs 4, 5 and 6 in support of his argument that sufficient cause exists to condone Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER delay. According to learned counsel for the applicant, the order passed by learned Civil Judge is devoid of any legal provision and, therefore, officers were baffled to comprehend that under which provision of law such humongous amount of interest was levied and as a result the matter was stuck in the legal department of the company and, thereafter, Director and Managing Director of a Government undertaking were transferred and, in procedural aspects newly appointed team was not well-versed and delay has occurred. In addition to above, learned Judge has rejected the counter-claim/written statement of the company in the suit at issue no.16 and, therefore, also when the final judgment was received by the applicant they were shocked and, after seeking legal advise, this application is filed. It is submitted that collecting of document became a herculean task and, therefore also, delay has occurred. It is accordingly prayed that delay, as prayed for, be condoned.
3.1 Learned advocate for the applicant has relied upon following decisions in support of his submission that in a case where an application is filed seeking condonation of delay under Section 5 of the Limitation Act, due to procedural and bureaucratic lethargy or set up, such application for condonation of delay be viewed liberally.
(1) Executive Officer, Antiyur Town Panchayat v. G. Arumugam, reported in GLH 2015 page 617.
(2) Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, reported in AIR (SC) 2012 pg.1629 Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER (3) Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Munnu Barrick reported in AIR (SC) 2005, page 1158.
(4) Union of India v. Manager, Jain and Associates, reported in AIR (SC) 2001, page 809.
(5) State of Haryana v. Chandra Mani, reported in AIR (SC) 1996, page 1623 .
(6) G.Ramegowda, Basavalingappa v. Special Land Acquisition Officer, Bangalore reported in AIR (SC) 1988 page 897.
(7) Riyaj Khan v. Kasamkhan reported in AIR (MP) 2013 page 138.
(8) Rajkot District Panchayat v. Vasoya Construction reported in GLR 2012 (2) 1441.
(9) Municipal Council v. Rawat Ram, reported in AIR (Raj) 1965 page 180.
4. On the other hand, Mr.Jainil Shah, learned advocate appearing for the respondent has filed affidavit-in-reply and opposed grant of relief to condone delay, as prayed for, and submitted that the application seeking condonation of delay lacks merit much less sufficient cause so as to apply mind and exercise discretion in favour of the applicant. According to him, upon pronouncement of judgment on 19.12.2015 and drawing decree on 1.1.2016, this application is preferred after Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER execution proceedings are initiated in which the appellant appeared through an advocate and asked for an adjournment from time to time. Learned advocate has relied on the Rojkam of execution proceedings, which continued for more than 11 months and except seeking time no effort was made. Thus, whatever explanation is rendered about procedural delay and difficulty on the part of the authorized person to prefer an appeal is not correct. No complicated question of law arise much less any deliberation is required. The action on the part of the applicant suffers from negligence, carelessness and, therefore, delay be not condoned. He relied upon the decision in the case of Basawaraj and Another v. The Special Land Acquisition Officer, reported in AIR 2004 SC 746, particularly paragraph 7 and 15.
5. For better appreciation of the submissions made by the learned advocate for the applicant, we reproduce hereafter paragraphs 3, 4, 5 and 6 of the application.
"3. The applicant respectfully states that the order passed by the Ld.Judge is devoid of any legal provisions in it and as a result the officers were baffled to comprehend that under which provision of law such humongous amount of interest was levied and as a result the matter was stuck in the legal department of the company for a long time.
4. The applicant respectfully states that the transfer of the Director and Managing Director being a Government undertaking is apparent and as the suit instituted is of 1999 the procedural as well as the factual aspects to Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER which the newly appointed team was not well versed and had to deal with meticulously. Hence, the delay may be condoned.
5. The applicant respectfully submits that the Ld.Judge has rejected the counter claim/ written statement of the defendant company in the suit (Issue No.16) on the reasons that the person signing the counter claim/written statement did not substantiate to be a competent person to sign the counter claim/ written statement on behalf of the defendant company in absence of a resolution passed. The applicants were shocked at the rejection in the final judgment and had to seek legal advice from various sources before preferring an appeal before this Hon'ble Court. Hence, the delay may be condoned.
6. The applicant respectfully submits that there is a delay of ________ days in filing the present application. The applicant company in absence of any legal provisions relied upon the judgment and the decree had to collect all the previous proceedings of the case. The collecting of documents became a herculean task and hence, the delay may be condoned."
5.1 Aforesaid paragraphs show how casually and in lackadaisical manner this application is preferred by the applicant, which shows no cause much less any sufficient cause and that vague assertions are made about difficulty on the part of the officers, who were baffled to comprehend that under which provision of law such humongous amount of interest is levied and it was herculean task for them to collect Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER the documents. As the counter-claim was rejected, they were shocked. Baring the above, no reason surfaced on record.
6. We may also consider the decisions upon which reliance is placed by the learned advocates.
6.1 The Apex Court in the case of Executive Officer, Antiyur Town Panchayat (supra) was satisfied that delay caused was on account of deliberate lapses on the part of the officer of Panchayat at the relevant point of time and delay was condoned.
6.2 In the case of Maniben Devraj Shah (supra), the Apex Court was considering the law of Limitation which is founded on public policy and the Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties to the litigation and further the idea underlying the concept of the law of limitation is that every remedy should remain alive only till the expiry of the period of limitation fixed by the legislature and, at the same time, the Courts are empowered to condone delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed time limit.
6.3 In Divisional Manager, Plantation Division, Andaman and Nicobar Islands (supra), it was a case arising out of the dispute under the Industrial Disputes Act, 1947 and Section 10 and 11- A of the Act wherein it was held by the Apex Court that serious questions of law were raised by the appellant and liberal view was required to be taken by a Division Bench of the High Court. In the above case, matter was pertaining to domestic Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER inquiry and the award passed by Presiding Officer, Labour Court and there was a breach of mandatory provisions of the Rules.
6.4 In the case of Union of India v. Manager, Jain and Associates (supra), an ex-parte decree was passed and an affidavit was filed by the applicant explaining the ground and reasons for delay and in the context provisions of the Arbitration Act, the Apex Court found that there was some procedural error in seeking leave of the Court to file objections, but it would not warrant rejection of the prayer and the Court also found that there was no dispute that case papers had been handed over by the appellant's representative to the counsel for drafting application under Section 33 of the Arbitration Act on a particular date i.e. before the expiry of the period of limitation and, thereafter, the applicant had no control over such papers or the counsel and then delay occurred came to be condoned.
6.5 In State of Haryana v. Chandra Mani (supra), the Apex Court considered that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive and, in the above context, relying on earlier decisions, it was held that the expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delay has to be condoned provided there is no gross negligence or deliberate inaction or lack of bona fide imputable to the party seeking condonation of delay. The Apex Court also found necessity of constituting legal cells in different departments of government at appropriate level to examine the cases where any legal principles are involved for decision by the Court or whether cases require adjustment and should Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER authorize the officers to take a decision or give appropriate permission for settlement. However, again according to the Apex Court delay of 109 days in the facts of that case was not inordinate and sufficient cause explained and, therefore, it came to be condoned.
6.6 In another decision of G.Ramegowda, Basavalingappa (supra) an application was preferred by Special Land Acquisition Officer under Section 5 of the Limitation Act, 1963 which came to be allowed, aggrieved by it claimant preferred Special Leave Petition before the Supreme Court in which earlier decisions were relied on and the Apex Court noticed the approach of the bureaucratic set up in the government and while assessing the facts of the case, the Apex Court found difference between the approach of private citizen or a litigant in pursuing legal proceedings and that of government authorities or officer. It is possible for a private person to take instant decision while so is not the case in the set up of government. However, in case if the government again is found perilous, such action cannot be condoned.
6.7 In the decision of the Madhya Pradesh High Court in the case of Riyaj Khan (supra), learned Single Judge of the High Court of Madhya Pradesh was dealing with Section 5 of the Limitation Act vis-a-vis the proceedings under Order 9, Rule 9 of the Civil Procedure Code. In that case, ex-parte decree was passed and it was observed by the Court that the extent of property involved and the stake of the parties will be one of the important consideration while exercising power and delay came to be condoned accordingly.
Page 8 of 11HC-NIC Page 8 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER 6.8 Learned Single Judge of this High Court in the case of Rajkot District Panchayat (supra) in the context of an application preferred by the District Panchayat and relying on decision of the Apex Court in the State of Nagaland v. Lipok AO reported in 2005 3 SCC 752, held that the expression "sufficient cause" is elastic enough to enable the Courts to apply the law in a meaningful manner, which sub-serves the ends of justice, but at the same time sufficient cause has to be explained in a proper manner and that government officers have not remained negligence or indolent. Again, sufficient cause is a matter, which depend upon facts and circumstances and perception in each matter and no rigid formula can be evolved.
6.9 In the case of Municipal Council v. Rawat Ram (supra), Rajasthan High Court considered the application for leave to appeal under Section 417 (3) of the Criminal Procedure Code before its amendment in 1973 and in that context said decision was rendered, where the learned Judge was considering even applicability of Article 157 of the Limitation Act, vis-a-vis Section 5. In the above case, the offence was pertaining to continuous encroachment and the provision of Section 203 of the Panchayat Act were considered, by which the Magistrate after considering the evidence of the parties found the accused guilty and convicted him for the offence and sentenced him to fine.
7. In the decision relied upon by the learned advocate for the respondent in the case of Basawaraj and Another (supra), it has been held as under:-
Page 9 of 11HC-NIC Page 9 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER "15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
8. We are in full agreement with the law laid down in the decisions relied on by learned counsel for the applicant to which we have made reference, but in this application no sufficient cause is germane either from submissions made in the application or submission made orally, therefore, we find no ground to condone delay, as prayed for. Accordingly, this application is rejected.
(ANANT S.DAVE, J.) Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Feb 04 00:17:18 IST 2017 C/CA/13607/2016 ORDER (A.Y. KOGJE, J.) *malek Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Feb 04 00:17:18 IST 2017