Bombay High Court
Mstc Limited vs Standard Chartered Bank on 17 January, 2023
Author: Gauri Godse
Bench: Nitin Jamdar, Gauri Godse
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 34860 OF 2022
MSTC Limited
A Government of India Enterprise
under the Administrative Control of
Ministry of Steel, New Delhi, Incorporated
under the provisions of the Companies Act,
1956, and having its registered office at
Plot no. CF-18/2, Street No. 175,
Action Area IC, New Town,
Kolkata-700 156, West Bengal ... Petitioner
Vs.
Standard Chartered Bank
A body incorporated under thereafter
Provisions of the Royal Charter, 1853
With its principal office at 1,
Aldermanbury Square,
London EC2V7SB, and interalia,
carrying on business at Kolkata
at 17 SA, Nalini Ranjan Avenue,
New Alipore, Kolkata 700 053 ... Respondent
Mr Gaurav Joshi, Senior Advocate with Mr Amit Jajoo, Mr Phiroze
Colabawalla, Ms. Richa Bhaati, Mr Rohit Gupta and Ms Anamika
Singh, a/w Mr Darpan Bhatia,i/b Indus Law for the Petitioner.
Mr Tushad Cooper, Senior Advocate, a/w Ms.Drishti Doshi,
Mr Kingshuk Baneerjee with Ms. Radhika Gupta, Mr Taha Mirza, Ms.
Rashika Bajpai, i/b. Khaitan & Co., for Respondent.
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CORAM: NITIN JAMDAR AND
GAURI GODSE, JJ.
Judgment Reserved : 22 DECEMBER 2022
Judgment Pronounced : 17 JANUARY 2023
(Through Video Conference)
Judgment: (Per: Gauri Godse, J.):
1. Rule. Rule made returnable forthwith. Respondents waive service. Taken up for final disposal.
2. This Petition is filed for challenging the order dated 9 November 2022 passed by the Debt Recovery Appellate Tribunal ("DRAT") at Mumbai in Interim Application No. 43 of 2021 in Miscellaneous Appeal (Dairy) No. 146 of 2021. By the said order application filed by the Petitioner for condonation of delay of 856 days in filing the appeal is rejected. Petitioner had filed the said appeal for challenging judgment and order dated 16 September 2017 passed by the Debt Recovery Tribunal ("DRT"), thereby granting decree on admission in favour of the Respondent.
3. Respondent had filed Original Application No. 43 of 2012 under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) before DRT, Mumbai for recovery of an amount of Rs.191,03,54,070.96 together with interest thereof. Petitioner had filed a written statement in the said application. Respondent had filed Interim Application No. 302 of 2017 under Rule 12(5) of the DRT (Procedure) Rules, 1993 praying for directing the Petitioner to pay the amount admitted by the Petitioner as being due and payable to the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 3 1-WPL-34860-2022.doc Respondent (decree on admission). By order dated 16 September 2017 DRT allowed the said application thereby directing the Petitioner to pay an amount of Rs.222.51 crores.
4. Petitioner filed Miscellaneous Appeal No. 1 of 2018 before DRAT for challenging the said order dated 16 September 2017 which was a decree on admission. This Appeal filed by the Petitioner was within the period of limitation. Petitioner filed Review Application No. 1 of 2018 for seeking review of the said order dated 16 September 2017. Thereafter on 28 December 2017, Petitioner filed an application (praecipe) seeking leave to withdraw the Miscellaneous Appeal No. 1 of 2018, with liberty to pursue the Review Application. By order dated 2 January 2018, Petitioner was allowed to withdraw the appeal, in view of the reasons that were stated in the application for withdrawal. Accordingly, Miscellaneous Appeal No. 1 of 2018 was disposed of in terms of the application for withdrawal.
5. On 15 February 2018, Petitioner filed Miscellaneous Application No. 11 of 2018 praying for condonation of delay of 28 days in filing the Review Application. The said application for condonation of delay in filing the Review Application was rejected on 21April 2018, on the ground that DRT does not have the power to condone delay in filing Review Application. Feeling aggrieved by the rejection of the delay condonation application, Petitioner had filed Writ Petition No. 2765 of 2018 in this Court. By order dated 3 May 2019 the said Writ Petition was allowed and this court held that DRT had power to condone the delay in filing Review Application. Thus, by the said order this court allowed the application for condonation of delay in filing Review ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 4 1-WPL-34860-2022.doc Application and in view thereof the Review Application was restored to file.
6. Respondent had challenged the said order dated 3 May 2019 by filing SLP in the Hon'ble Supreme Court. In view of the interim order of stay granted by the Hon'ble Supreme Court, Review Application was not heard. By order dated 21 January 2020, the Hon'ble Supreme Court allowed the SLP filed by Respondent and the Review Application of the Petitioner was dismissed. Thus, the Hon'ble Supreme Court held that DRT does not have any power to condone delay in filing Review Application. In view of the dismissal of the Review Application on the ground of delay, Petitioner, thereafter filed Miscellaneous Appeal (Diary) No. 146 of 2021 in DRAT for challenging the said order dated 16 September 2017 by which the decree on admission was granted in favour of the Respondent. Since there was delay in filing the said appeal Petitioner filed Interim Application No. 43 of 2021 for condonation of delay. By order dated 9 November 2022 DRAT rejected the said Interim Application for condonation of delay. Hence, the Petitioner filed the present Writ Petition.
7. Mr. Gaurav Joshi, learned Senior Counsel on behalf of the Petitioner made the following submissions for challenging the impugned order and in support of the application for condonation of delay in filing the appeal:
a) DRAT rejected the application for condonation of delay, basically on the ground that the appeal itself was not maintainable. Appeal filed ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 5 1-WPL-34860-2022.doc by the Petitioner at the first instance, i.e., before filing the Review Application, was in fact within limitation. However, Petitioner was advised to file Review Application, as the impugned order dated 16 September 2017 had failed to take into consideration various submissions as well as judgments relied upon by the Petitioner at the time of hearing of the Interim Application No. 302 of 2017(for decree on admission) filed by the Respondent. Petitioner had filed the Review Application under a bonafide belief that it was filed within the period of limitation of 60 days. Since the Petitioner had filed Review Application, withdrawal application was filed on behalf of the Petitioner to withdraw the appeal which was filed challenging the order under review. Thus, the Petitioner had never abandoned the right to challenge the order dated 16 September 2017 for which the appeal was filed. By order dated 2 January 2018, Petitioner was allowed to withdraw the appeal, by specifically recording that the withdrawal was allowed in view of the reasons that were stated in the application (praecipe) for withdrawal. Thus, it was never an unconditional withdrawal of the appeal. DRAT however, mis-interpreted the said order dated 2 January 2018 to construe that the Petitioner had in fact never sought any liberty at the time of withdrawal of the appeal. Since the Review Application was filed under a bonafide belief that the period of limitation was 60 days, the Petitioner, immediately on realising the mistake had filed Miscellaneous Application No. 11 of 2018 for condonation of delay of 28 days in filing the Review Application. This was an inadvertent error occurred on behalf of the Petitioner only due to reliance upon an incorrect version of the Bare Act issued by 'Professionals Publication' in the year 2017 which did not ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 6 1-WPL-34860-2022.doc provide the amended period of limitation of 30 days. The said application for delay condonation in filing Review Application was rejected by the DRT only on the ground that DRT did not have power to condone the delay in filing the Review Application. Since the application for delay condonation in filing Review Application was dismissed, the Petitioner had filed Writ Petition in this Court, as there was no appeal provided against dismissal of delay condonation application in filing the Review Application.
b) It was submitted on behalf of the Petitioner that as per the proposition of law prevailing at that time as held in the case of Kotak Mahindra Bank Limited vs. Mr. R.C. Shah (Deceased) through his legal heirs1 that there was no appeal provided from the order rejecting Review Application, the Petitioner had filed Writ Petition in this Court against rejection of delay condonation application in filing Review Application. However, subsequently the Hon'ble Supreme Court in the SLP filed by the Respondent held that appeal was maintainable for challenging the rejection of condonation of delay in filing Review Application. Thus, it was submitted that as per the proposition of law prevailing at that time, Petitioner had correctly filed Writ Petition for challenging the dismissal of the delay condonation application in filing the Review Application. This Court had allowed the said Writ Petition filed by the Petitioner and it was held that DRT had power to condone the delay in filing Review Application. Thus, this court allowed condonation of delay in filing the Review Application and in pursuance thereof the Review Application of the Petitioner was restored to file. However, in view of the order of stay granted by the Hon'ble Supreme 1 Writ Petition (L) no. 2886 of 2011 dated 23 January 2012 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 7 1-WPL-34860-2022.doc Court the Review Application was not restored and was not heard. Subsequently, the SLP was allowed on 21 January 2020 by the Hon'ble Supreme Court and the Review Application of the Petitioner was dismissed on the ground that the DRT had no power to condone the delay in filing Review Application. In such situation the Petitioner had sought the opinion from the learned Solicitor General of India for taking further steps in the matter.
c) The Petitioner is a Government of India undertaking and thus it took some time to seek advice from the Advocates and the administration, for taking further steps. Thereafter, as advised the Petitioner immediately filed Miscellaneous Appeal (Diary) No. 146 of 2021 on 20 February 2020 for challenging the Original Order dated 16 September 2017, thereby granting decree on admission against the Petitioner. Petitioner had also filed an application for waiver of pre- deposit for filing the appeal. In the said Miscellaneous Appeal the pleadings of the parties were completed and the appeal was heard before the learned Chairperson on various dates. However, on 7 September 2021 it was informed that the tenure of the learned Chairperson was to come to an end on 14 September 2021, hence, Petitioner filed Writ Petition (L) No. 24630 of 2021 in this court for seeking urgent necessary relief. The Petition was filed only because seat of the learned Chairperson was vacant and the learned Recovery Officer had passed order for fixing the sale of the property owned by the Petitioner, which were attached in the recovery proceedings.
d) By order dated 2 December 2021, this Court stayed the recovery proceedings on condition of deposit of 25% of the decretal amount.
::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 :::8 1-WPL-34860-2022.doc Petitioner on 6 December 2021 deposited the amount of Rs.55,62,75,000/- in this Court. The said amount was transferred to the Registry of DRAT on 11 March 2022 after the Writ Petition was disposed of. Subsequently, in view of the appointment of the learned Chairperson in DRAT, the Writ Petition was disposed of on 22 February 2022 and this Court issued directions for continuation of stay of the recovery proceedings for a period of three weeks from the date of the learned Chairperson taking charge. The stay order granted was extended. Thus, it was contended that the delay that had occurred in filing the appeal was only in view of the aforesaid facts and circumstances and that there was no negligence on the part of the Petitioner. Subsequently, the Hon'ble Supreme Court held that there was no power to condone delay in filing Review Application in DRT. Hence, ultimately the Review Application came to be dismissed. However, immediately thereafter Petitioner took steps to file a fresh appeal for challenging the said Original Order of grant of decree on admission. As held by the Hon'ble Supreme Court in the Order of SLP against the review order, provisions of the Code of Civil Procedure do not strictly apply to the DRT proceedings. However, as per the law that was prevailing at the time of filing Review Application, that no Appeal lies against the order of Review, the Petitioner was diligent enough to file Writ Petition. Hence, this cannot be attributed to any kind of negligence towards the Petitioner.
e) By the impugned order, DRAT has decided the application for delay condonation by examining the merits of the appeal and thus ignored the specific grounds raised by the Petitioner with respect to the bonafide mistake on part of the Petitioner. DRAT ignored to consider ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 9 1-WPL-34860-2022.doc the difference between ignorance of law and bonafide mistake on the part of the Petitioner. Petitioner relied upon the decision of Allahabad High Court in the case of Bharat and others Vs Ram Pratap and others 2 in support of the submission that when application for withdrawal of the proceeding is made with prayer for liberty, the said application is either allowed with liberty prayed or the prayer for withdrawal is to be rejected. The perusal of the order allowing withdrawal of the appeal specifically shows that the withdrawal of the application was allowed with liberty as prayed for by the Petitioner in the application for withdrawal. Thus, the Petitioner never abandoned the right of appeal and that there was a specific reason to file review. Timely steps taken by the Petitioner, shows that Petitioner was always diligent and there was no negligence on the part of the Petitioner. In support of the submissions of the Petitioner regarding applicability of the principles under Section 14 of the Limitation Act for excluding the period of limitation and condonation of delay, Mr Joshi, relied upon the decisions of the Hon'ble Supreme Court in cases of M.P. Steel Corporation Vs Commissioner of Central Excise 3, Sesh Nath Singh Vs Baidyabati Sheoraphuli Co-op Bank 4, State of Kerala Vs M.G. Presanna5, Kalpraj Dharamshi Vs Kotak Investment Advisors Ltd. 6 Thus, it was submitted that the order of DRAT rejecting the application for condonation of delay was a perverse order and thus required to be quashed and set aside.
21984 SCC Online All 318 3 (2015) 7 SCC 58 4 (2021) SCC Online SC 244 5 (2011) 15 SCC 203 6 (2021) 10 SCC 401 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 10 1-WPL-34860-2022.doc
8. Mr. Cooper, learned Senior Counsel on behalf of the Respondent supported the order of DRAT and made the following submissions:
a) Since the appeal was already filed by the Petitioner, the Review Application filed by the Petitioner during the pendency of the appeal was thoroughly incompetent. The grounds raised by Petitioner in the appeal as well as the Review Application were same and thus there was no reason to file review. Since the grounds raised in the Review Application were same as the grounds of Appeal, the Review Application itself was not maintainable. The Review Application was time barred and that the Review Application could not have been filed, as the appeal was already pending. Since the Petitioner was well aware of these aspects the steps taken by the Petitioner for initially filing appeal, then withdrawal of the same for filing review was only with an intention to delay the recovery proceedings. Thus, there was complete mischief on the part of the Petitioner by taking out all these proceedings with an intention to delay the recovery proceedings.
b) All these facts of the case shows that all the attempts on the part of the Petitioner were only with an intention to avoid pre-deposit which is required for purpose of filing appeal. At the time of withdrawal of the appeal the Petitioner had deliberately not served copy of the withdrawal application (praecipe) and that there was no intimation to the Respondent that the review was already filed. It was submitted that the Order XXIII Rule 1 of Code of Civil Procedure did not require that any reasons are to be given for the purpose of making an application for withdrawal. It was further submitted that withdrawal of the appeal amounts to the Petitioner abandoning the right of appeal as there was no such liberty granted when the appeal was withdrawn.::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 :::
11 1-WPL-34860-2022.doc Petitioner never sought any leave for filing the appeal again. Hence, the appeal again filed by the Petitioner after the order passed by the Hon'ble Supreme Court is not maintainable. It was submitted that the Petitioner had made a false statement in the appeal that the application for delay condonation was already filed. However, no such application was filed along with the appeal and that only with an intention to keep the proceedings pending, after a long gap the Petitioner subsequently filed application for condonation of delay. In support of the order passed by the DRAT it was submitted that the observations made by the DRAT may be termed as harsh but the same are justified in the facts and circumstances of the case, as the reasons given in the application for condonation of delay were not satisfactory. In fact, the review which was filed by Petitioner was itself void ab initio. Hence, the time required in pursuing the review could not have been considered to be eligible for exclusion for the time for the period of computation of period of limitation in filing the appeal. In support of this submission the decision of the Hon'ble Supreme Court in the case of Consolidated Engineering Enterprises Vs Principal Secretary7 was relied upon.
c) It was also submitted that in the earlier round of litigation prayer made by the Petitioner in Writ Petition No. 2765 of 2018 for challenging the original order/decree on admission was not pressed as recorded by this court in order dated 3rd May 2019. Hence, the Petitioner was now not entitled to make similar prayers in the present Petition. All the facts and circumstances with respect to the case shows that the Petitioner never acted in a bonafide manner and that the Petitioner always indulged in dilatory tactics.
7(2008) 7 SCC 169 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 12 1-WPL-34860-2022.doc
d) The ground of the Petitioner that since the Petitioner is a Government entity a different view is required to be taken had no merits. In fact, as per the Government circular unless public policy is involved, Government should refrain from filing any appeal. In the written statement and the document produced in the Original Application the Petitioner had admitted in the balance sheet that Rs. 221 crores were due and payable to the Respondent. Hence, the Original Order of granting decree on admission was a justified order and even otherwise there was absolutely no merit in the appeal preferred by the Petitioner. Exclusion of time can be availed by a party only if wrong proceeding is prosecuted. However, the present Petitioner was prosecuting the correct remedy by filing an appeal. Petitioner thereafter preferred to withdraw the same and thus there was specifically an abandonment of the right of appeal. Hence, time required in prosecuting the Review Application could not have been excluded for the purpose of computation of limitation period in filing appeal.
e) It was submitted on behalf of the Respondent that condonation of delay can be allowed only on sufficient cause, as per the settled principles. Sufficient cause cannot be liberally interpreted, if negligence in action or want of bonafide is imputable. If limitation is applied harshly, it may affect a particular party, but it has to be applied with all it's rigours, even if a party has good case on merits. The contention that the period of limitation must be given a go by has been found to be preposterous and specifically rejected. In support of this submission learned Senior Counsel relied upon the decision of the Hon'ble ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 13 1-WPL-34860-2022.doc Supreme Court in the case of The State of Madhya Pradesh and Ors. Vs Bherulal 8. He thus submitted that the court has to examine whether the mistake was bonafide or it was devised to cover an ulterior purpose. If different explanation smacks malafide or is put forth as part of dilatory strategy to gain time, then condonation of delay is impermissible. In support of this submission learned Senior Counsel relied on the decision of the Hon'ble Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy 9. It was further submitted that just because the Petitioner is a Government company the same does not make any difference for the purpose of making out a condonable ground for condonation of delay. The principle that expiration of limitation gives rise to a vested right in favour of decree holder be borne in mind. There must be no pretended mistake intentionally made with a view to delay the proceeding or harassing the counter party.
f) The learned Senior Counsel for the Respondent, then relied upon the decision of the Hon'ble Supreme Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary Irrigation Department. Thus, it was submitted that the conditions for condonation of delay are to be satisfied before considering the ground for exclusion of time under section 14 of the Limitation Act of 1963. It was thus the obligation on the part of the Petitioner to prove that the prior proceedings are prosecuted with due diligence and in good faith. Mere averments in the pleadings as to institution and/or prosecution of the proceedings in good faith would not be sufficient and that the Petitioner ought to have established by leading evidence that the prior 8 (2020) 10 SCC 654 9 (1998) 7 SCC 123 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 14 1-WPL-34860-2022.doc proceedings were instituted in good faith and thereafter the same were being prosecuted in good faith. In support of this submission the learned Senior Counsel relied upon the decision of the Hon'ble Supreme Court in the case of Foreshore Co-operative Housing Society Ltd. Vs Praveen D. Desai (D) through Lrs & Ors.10
g) It was thus submitted that the chronology of the events and the manner in which the Petitioner had prosecuted all the proceedings do not show that the same were in good faith. Respondent had already circulated an application for interim relief in the Original Application filed before the DRT on 28 March 2012. Thereafter the Petitioner filed a suit on title in the civil court at Kolkata on 3 April 2012. Petitioner also filed an application for injunction in the said suit and on 26 April 2012 and there was ex-parte interim injunction passed in favour of the Petitioner, as stated by the Petitioner in an application filed in DRT thereby raising objection to the jurisdiction to the application filed by the Respondent in DRT. In the month of January 2013, the application filed by the Petitioner challenging the jurisdiction in DRT was dismissed.
h) It was further submitted that much was argued on behalf of the Petitioner that the Respondent had produced an incorrect copy of the agreement in support of the point of jurisdiction in DRT Mumbai for the purpose of filing application. It was thus submitted that the version of the copy of the agreement produced by the Respondent in this court in the Writ Petition arising out of issue of jurisdiction was the same version of the copy which was relied upon and produced by the 10 (2015) 6 SCC 412 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 15 1-WPL-34860-2022.doc Petitioner in the civil suit filed in the court at Kolkata. Thus, it was submitted that the entire effort on the part of the Petitioner was somehow to delay the recovery proceeding initiated by the Respondent. Hence, it cannot be said that the Petitioner had prosecuted the earlier proceeding in good faith. In support of this contention raised by the Respondent the learned Senior Counsel relied upon the decision of this Court in the case of Balling Vithaling Sakharpekar vs. Shri Devasthan Fund 11. The learned Senior Counsel on behalf of the Respondent also relied upon the decisions of the Hon'ble Supreme Court in the case of Lily Thomas vs. Union of India 12, S. Madhusudhan Reddy vs. Narayana Reddy 13, Parsion Devi & Ors. vs. Sumitri Devi & Ors. 14 Thus, by relying upon the said decisions it was submitted that once the Petitioner had withdrawn the Appeal filed in DRAT for challenging the decree on admission and after dismissal of the Review Application, the Petitioner had no right to file fresh appeal again to challenge the original order of granting decree on admission. It was thus submitted that in the guise of a bonafide mistake the Petitioner cannot correct its mistake and substitute one more proceeding for challenging the same order. Thus, it was sought to be contended on behalf of the Respondent that the Petitioner having failed in making out a case on merits in the Review Application, was not entitled to again file appeal challenging the same order. With these submissions it was prayed that there was no merit in the submissions made by the Petitioner and the Petition is required to be dismissed.
11(1930) SCC Online BOM 168 12 (2000) 6 SCC 224 13 (2022) SCC Online SC 1034 14 (1997) 8 SCC 715 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 16 1-WPL-34860-2022.doc
9. In response to the submissions made on behalf of the Respondent, the learned senior counsel on behalf of the Petitioner submitted that all the actions on the part of the Petitioner were bonafide and the Petitioner was always diligent in taking steps by initially filing appeal and thereafter as advised by filing Review Application. There was delay in filing Review Application only due to bonafide mistake on the part of the Petitioner in relying upon a wrong version of the Bare Act. Time consumed in filing the Writ Petition was also bonafide, as at the relevant time the proposition of law was that there was no appeal provided for challenging the order passed in review. It was only subsequently held by the Hon'ble Supreme Court that the order in review was appealable. Review Application was rejected only on the ground of delay and that the merits were never dealt with. This Court in fact had allowed the delay application in filing review. There was never any decision on the point of maintainability of the appeal against the order of granting decree on admission. Hence, the delay that occurred in filing appeal was only due to bonafide mistake and the time required for prosecuting the review and the Petition filed in this Court. After the order was passed by the Hon'ble Supreme Court in the SLP, Petitioner had immediately taken steps to file fresh appeal. Hence, no negligence and/or malafides can be attributed to the action of the Petitioner. Thus, it was submitted that the application for condonation of delay made by the Petitioner deserves to be allowed and the Petitioner was entitled to be heard on merits.
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10. We have heard both the sides at length. We have carefully examined the pleadings as well as the submissions made on behalf of both the parties. We are mindful of the settled proposition of law that, even though limitation may harshly affect rights of a party, it has to be applied with all its rigours when prescribed by statute. There is no straight jacket formula for condonation of delay. The principles for condonation of delay are to be applied by exercising the discretionary jurisdiction of a court, upon examining the facts and circumstances of each case. The Hon'ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy and Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy15, has held that the expression "sufficient cause" should be construed liberally and that in the absence of anything showing malafides or deliberate delay as a dilatory tactic, normally delay has to be condoned. There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay and that the State or a public body or an entity representing a collective cause should be given some acceptable latitude. However, while doing so, the Court has to keep in mind the consequent litigation expenses incurred by the opposite party and compensate that party accordingly. Thus, while exercising discretion, condoning delay or rejecting delay condonation application are not the only options. The equities can be balanced by imposing suitable costs commensurate to the situation. Stringent timelines can be fixed for disposal of the case on merits. We find that none of these options are explored while deciding the application for delay condonation filed by the Petitioner. The impugned order in present 15 (2013) 12 SCC 649 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 18 1-WPL-34860-2022.doc case is bereft any particulars or reasons and that only conclusions are quoted without any basis.
11. By applying the well settled principles of law, we have carefully examined the peculiar facts and circumstances of this case. Petitioner is a public sector undertaking. DRAT has not specified any reasons for saying that Petitioner is recalcitrant. Petitioner had initially filed appeal well within limitation and thus had taken immediate steps to challenge the order/decree on admission directing the Petitioner to make payment. However, it is the case of the Petitioner that since the submissions made by the Petitioner were not dealt with by DRT while allowing the application of the Respondent for decree on admission, the Petitioner had filed Review Application, in view of the law laid down by the Hon'ble Supreme Court in case of Mohd Akram Ansari Vs Chief Election Officer16 holding that, for making such grievance the party should approach the same court. Since the grounds raised in the said appeal were with respect to non-consideration of submissions by DRT, the Petitioner was advised to file Review Application, as per the proposition of law on this aspect. Therefore, for prosecuting the Review Application, the Petitioner had applied for withdrawal of the appeal and sought liberty for the same. The prayer for withdrawal was made on behalf of the Petitioner specifically with liberty to pursue the Review Application. Perusal of the order of DRAT allowing withdrawal of appeal shows that withdrawal was allowed as per the liberty prayed, hence there is no merit in the submission of the Respondent that the Petitioner had abandoned the right of appeal. There is also no merit in the argument of the Respondent that, the Petitioner is not entitled to 16 (2008) 2 SCC 95 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 19 1-WPL-34860-2022.doc challenge the original order dated 16 September 2017 as the prayer for challenging the same made in Writ Petition No. 2765 of 2019 was not pressed by the Petitioner. Petitioner had filed Writ Petition No. 2765 of 2019 for challenging order dated 21 April 2018 passed by DRT refusing to condone delay in filing Review Application. In the said Writ Petition prayer was also made raising challenge to the order under review. Thus, in the context of this court examining the delay application, challenge to the Original Order under review was not pressed. Thus, the same cannot be stretched to mean that the Petitioner abandoned the right to file substantive statutory appeal for challenging the Original Order under review. It is also clear that the Petitioner had withdrawn the appeal only for the purpose of prosecuting Review Application and there was never any unconditional withdrawal or abandonment of the right to challenge the original order granting decree on admission. It was only due to the bonafide mistake that the Review Application came to be filed beyond the period of limitation. Therefore, after dismissal of review on the ground of being time barred, the Petitioner could have always applied for recalling the order of withdrawal of appeal and consequently prayed for revival of the statutory appeal, which was earlier withdrawn only for prosecuting Review Application. Thus, it cannot be said that the Petitioner had anytime given up the right to challenge the Original Order on merits. Therefore, the Petitioner filed a fresh appeal, as advised by applying for condonation of delay. The fact cannot be ignored that the Petitioner is never heard on merits on the challenge to the Original Order granting decree on admission. Hence, dismissal of review on the ground of limitation, cannot be held to be taking away the substantive right of the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 20 1-WPL-34860-2022.doc Petitioner to challenge the Original Order by filing statutory appeal. Thus, the decisions of the Hon'ble Supreme Court relied upon by the Respondent are not applicable to the facts of present case.
12. None of the steps taken by the Petitioner can be attributed towards any kind of negligence or any kind of delay tactics, as there is no substantial gain to the Petitioner by filing Review Application or keeping the proceedings pending in any manner. It is clear that only due to the nature of grounds raised for challenging the order/decree on admission for payment, the Petitioner was advised to file Review Application, in view of the position of law. It is important to take into consideration that the time consumed in further litigation is because of legal intricacies. The reason for delay in filing Review Application that it was only due to reliance on an incorrect version of the Bare Act, cannot be said to be unbelievable. The period of limitation for filing review, initially was 60 days from the date of the order. However, by amendment which came into effect in the year 2016, the period of limitation was reduced to 30 days. Reliance was placed on behalf of the Petitioner on the Bare Act of 'Professionals Publication' of the year 2017, which incorrectly contained the unamended provision. The fact cannot be ignored that this court had allowed the Writ Petition filed by the Petitioner and the delay in filing Review Application was condoned. However, the SLP filed by the Respondent was allowed by the Hon'ble Supreme Court by holding that there was no power to condone delay in filling Review Application and thus Review Application was dismissed as time barred. Thus, the challenge on merits was never examined. We find that there is no merit in the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 21 1-WPL-34860-2022.doc argument of the Respondent that, there was mischief on the part of the Petitioner and/or dilatory tactics were adopted by the Petitioner. The argument on behalf of the Respondent regarding non-service of withdrawal application in time, is thus not relevant for deciding the application for condonation of delay in the facts of this case and therefore it cannot be accepted.
13. According to us the relevant period to test the bonafides of the Petitioner is after the dismissal of the Review Application by the Hon'ble Supreme Court. It is important to note that immediately after the order was passed by the Hon'ble Supreme Court in SLP on 21 st January 2020, the Petitioner had taken immediate steps and on 20 th February 2020, filed fresh appeal for challenging the order/decree on admission. Therefore, the reason given by the Petitioner for the time taken by the Petitioner to file fresh appeal after the order by the Hon'ble Supreme Court needs to be tested. Perusal of the application for condonation of delay shows that the Petitioner being a Government of India undertaking sought advice from the Learned Solicitor General of India and thus took some time in seeking advice. Thus, the reason given by the Petitioner for condonation of delay cannot be said to be unreasonable or not condonable. Thus, to hold that the Petitioner created a legal controversy is too much to impute and will amount to destroying rights of the Petitioner to contest the main matter on merits. Though decisions on exclusion of time under section 14 of the Limitation Act 1963 were cited and much was argued on exclusion of time, we find that the application of the Petitioner specifically filed under section 5 of the Limitation Act 1963, needs to be examined on ::: Uploaded on - 18/01/2023 ::: Downloaded on - 30/05/2023 01:32:05 ::: 22 1-WPL-34860-2022.doc the touchstone of the principles for condonation of delay and find out whether the reasons given for the same are genuine and acceptable. For the reasons recorded above we find that all the necessary steps were taken by the Petitioner diligently and the reasons given by the Petitioner for condonation of delay are satisfactory.
14. Considering the facts and circumstances of the case and the steps taken by the Petitioner since beginning, we find it appropriate to exercise writ jurisdiction. It cannot be held that the Petitioner had at every stage attempted to drag the proceedings, as sought to be contented by the respondent. The Original Order challenged by the Petitioner is an order/decree on admission directing Petitioner to make payment. Admittedly Petitioner has already made a pre-deposit of Rs. 55,62,75,000/-. None of the steps taken by the Petitioner can be attributed towards any kind of malafides or delay tactics. Petitioner has not gained any undue benefit by taking all the steps, which are in fact only an attempt to get an opportunity to deal the case on merits. We thus, find that the explanation put forth by the Petitioner for condonation of delay is satisfactory.
15. As regards imposing of conditions and balancing equities is concerned, it has to be kept in mind that the claim of the Respondent is allowed for recovery of Rs. 222.51 crores. Therefore, according to us the amount of Rs. 10 lakhs towards cost will be appropriate. The Petitioner had stated that the Petitioner will adhere to the time lines fixed by this court for the disposal of the appeal.
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16. Hence, following order is passed:
(i) Interim Application No. 43 of 2021 in Miscellaneous Appeal (Diary) No. 146 of 2021, is allowed. Delay in filing Appeal is condoned, subject to Petitioner paying costs of Rs.
10 Lakhs to the Respondent, within a period of four weeks from today.
(ii) On producing proof of payment of costs as directed in clause (i) above, Miscellaneous Appeal (Diary) No. 146 of 2021 will be restored to file of concerned DRAT Mumbai.
(iii) Miscellaneous Appeal (Diary) No. 146 of 2021 will be decided as expeditiously as possible and maximum within a period of four months from today.
(iv) DRAT will set time lines for disposal of the appeal and Petitioner will not take unnecessary adjournments and will co- operate for early disposal within the time limit.
(v) Rule made absolute in above terms.
(GAURI GODSE, J.) (NITIN JAMDAR, J.)
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