Jharkhand High Court
M/S Akshya Technologies Pvt. Ltd. ... vs M/S Damodar Valley Corporation (Herein ... on 9 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Commercial Appeal No. 20 of 2019
With
I.A. No. 2782 of 2023
1. M/s Akshya Technologies Pvt. Ltd. having its works at Industrial area
P.O. Marar, P.S. Ramgarh Dist. Ramgarh through its one of the
Director, Jai Prakash Saha s/o Late Soukhi Lal Saha, r/o Thana
Chowk, Near Satkauri Complex, P.O. & P.S. Ramgarh, Dist (now)
Ramgarh (Previously in Hazaribagh).
2. Managing Director of Akshaya Technologies Pvt. Ltd. (being present
Mr. Jai Prakash Saha) RAIDA Bhawan 3rd Floor, Main Road, Ranchi,
834001, Dist.-Ranchi, 834001.
... ... Appellant/Defendant
Versus
M/s Damodar Valley Corporation (herein after referred to as D.V.C.)
A body corporate and a corporation under the Damodar Valley
Corporation Act, 1948, having its registered office at D.V.C. Towers,
V.I.P. Road, P.O. & P.S.-V.I.P. Road, Dist.-Kolkata, 700034.
... ... Respondent/Plaintiff
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Pandey Neeraj Rai, AAG-II For the Respondent : Mr. Srijit Choudhary, Advocate Ms. Tanya Rai, Advocate Mr. Aayush Ojha, Advocate
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th C.A.V. on 29 April, 2024 Pronounced on 09/05/2024
1. The instant Commercial appeal has been filed under Section 13 of the Commercial Courts Act, 2015 (hereinafter referred to as the Act, 2015) assailing judgment/order dated 22.05.2019 and the decree which has been signed and sealed on 04.06.2019 passed in Original Suit No. 68 of 2018arising out of Money Suit No.09 of 2023 passed by the learned District Judge, XIV-cum-Presiding Officer, Commercial Court, Dhanbad, whereby and whereunder, the decree for a sum of Rs.6,25,62,978/- has been passed against the appellant.
Page 1 of 20 Commercial Appeal No. 20 of 2019I.A. No. 2782 of 2023:
2. Since, this appeal is barred by limitation of 236 days, as such, Interlocutory Application being I.A. No. 2782 of 2023 has been filed, hence, it is necessary to first pass appropriate order in the instant interlocutory application.
3. The main ground for condoning the delay has been taken, as per the statement made in the instant interlocutory application, that the impugned judgment has been passed on 22.05.2019. The certified copy of the said judgment dated 22.05.2019 was obtained by the conducting advocate on 22.06.2019 but he had not informed about the said judgment to the appellant rather much belatedly in the month of October, 2019, the appellant came to know about the said judgment.
The appellant after knowing about the judgment had consulted the advocate at Ramgarh and subsequently at Ranchi for filing the appeal against the judgment dated 22.05.2019.
It has been stated that after collecting all the necessary documents, the appellant approached the conducting lawyer at Ranchi in the month of November, 2019 and accordingly, the connected memo of appeal was prepared and filled the same on 14.11.2019.
It has also been stated that the advocate clerk while filing the memo of appeal, somehow misplaced the certified copy of the judgment dated 22.05.2019 and hence, could not file the same along with the memo of appeal and the conducting lawyer remained under the impression that the same has been filed.
It has further been stated that in the meantime, due to pandemic COVID-19, the certified copy of the judgment dated 22.05.2019 could not have been requisitioned, however, the appellant got the certified copy on 24.09.2020 and handed over the same to the conducting lawyer which was filed on 30.09.2020, as such, the delay of 236 days has occurred which is not intentional rather has occurred due to the reason beyond the control of the appellant.
Page 2 of 20 Commercial Appeal No. 20 of 20194. Mr. Pandey Neeraj Rai, learned counsel for the appellants has submitted by taking the stand inter alia in the delay condonation application that on the basis of the ground upon which the delay has been caused in filing the appeal, the same is fit to be condoned reason being that the appeal was filed on 14.11.2019 against the judgment dated 22.05.2019 without any certified copy. But, it cannot be said that the appeal was not filed rather it was filed on 14.11.2019 and subsequent thereto, the certified copy was also filed on 30.09.2020, hence, the limitation, if any, at best be said to be from 22.07.2019 up to 14.11.2019, the day when the appeal was filed.
The ground, therefore, has been taken that the reason for condoning the delay may be considered to be sufficient cause and hence, delay may be condoned.
5. Mr. Srijit Choudhary, learned counsel for the respondent has seriously objected to the submission made on behalf of the learned counsel for the appellant that whatever ground has been taken as referred in the interlocutory application, that cannot be said to be sufficient cause to condone the delay.
6. He, further submits that the cause for delay of 236 days which has been shown as per the interlocutory application that initially the appellant was not having knowledge about the judgment and when he got to knowledge about the judgement, the conducting lawyer has been consulted, the same cannot be said to be sufficient cause to condone the delay.
7. It has also been submitted that the explanation which has been furnished for condoning the delay cannot be said to be exceptional one to condone the delay rather there is casual approach on behalf of the appellant in filing the appeal which is contrary to the very object and intent of the Act, 2015 wherein the time period has been provided for filing the appeal so as to achieve the very object and intent of the Act, 2015 which is for early disposal of the commercial disputes.
Page 3 of 20 Commercial Appeal No. 20 of 20198. The contention as has been raised that the appeal was filed without any certified copy but subsequent thereto, the certified copy has been said to be misplaced, these two grounds are nothing but a casual approach of the appellant upon which the ground is being taken for its consideration to be sufficient cause for condoning the delay.
9. Learned counsel for the respondent, in order to strengthen his augment, has relied upon a judgment rendered by the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited [(2021) 6 SCC 460] wherein the Hon'ble Apex Court while stretching the period of limitation in exceptional circumstances has observed that the limitation is to be condoned by way of exception and not by way of rule, i.e., only in case where a party has otherwise acted bona fide and not in a negligent manner.
10. Herein, as per the explanation furnished on behalf of the appellant, the same cannot be said to be bona fide rather in a negligent manner, hence, in view of the judgment rendered by the Hon'ble Apex Court in the aforesaid case, the reason shown for condoning the delay cannot be said to be sufficient cause and in that view of the matter, the period of limitation to file the appeal within 60 days as provided under Section 13-IA of the Act, 2015 is not fit to be condoned.
11. We have heard learned counsel for the parties and gone across the reasons causing the delay in preferring the appeal, as has been pleaded in the Interlocutory Application.
12. This Court, before proceeding to examine the cause as shown in the delay condonation application, needs to refer herein the object and intent of the enactment of Act is expeditious disposal of appeals as provided under Section 14 of the Commercial Courts Act.
13. It is evident from the very object that the Act, 2015 has been enacted for the purpose of expeditious disposal of the commercial disputes and that is the reason, specific provision has been made by providing a forum Page 4 of 20 Commercial Appeal No. 20 of 2019 under Section 13 of the Act, 2015 enabling the aggrieved to file appeal within the statutory period of 60 days and there is no provision to stretch the period of limitation. For ready reference, the provision of Section 13 is being referred as under:
"13. Appeals from decrees of Commercial Courts and Commercial Divisions.--(1) 1 [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."
14. The period of limitation is not to be extended but the Hon'ble Apex Court considering the issue of limitation in the case of Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) has laid down the proposition at paragraph-63 which reads as under:
"63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under Section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13(1- A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches."
15. it is evident from the aforesaid judgment that even though under the statutory provision, the period of limitation is not extendable but even Page 5 of 20 Commercial Appeal No. 20 of 2019 then, the Hon'ble Apex Court observed that in the exceptional circumstances, it can be condoned but not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches.
The aforesaid finding has come taking into consideration the object of speedy disposal which is sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under Section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13(1-A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule.
The Hon'ble Apex Court, while laying down such proposition, refused to condone the delay of 131 days so far as it relates to Civil Appeal Arising out of S.L.P. (C) No. 665 of 2021. Further, the delay of 75 days was refused to be condoned while passing order in S.L.P.(C) No. 15278 of 2020. It further appears that even the delay of 227 days in filing appeal and 200 days in refiling was declined to be condoned in S.L.P.(C) No. 18079 of 2020.
The relevant paragraphs of the said judgment are quoted as hereunder:
"64. Coming to the facts of the appeals before us, in the civil appeal arising out of SLP (C) No. 665 of 2021, the impugned judgment of the High Court of Bombay, dated 17-12-2020 [State of Maharashtra v. Borse Bros. Engineers & Contractors (P) Ltd., 2020 SCC OnLine Bom 10453] , has found that the Government of Maharashtra had not approached the court bona fide, as follows : (Borse Brothers case [State of Maharashtra v. Borse Bros. Engineers & Contractors (P) Ltd., 2020 SCC OnLine Bom 10453] , SCC OnLine Bom para 7) "7. I have carefully gone through the papers. There can be no doubt in view of the documentary evidence in the form of copy of the application tendered by the advocate representing the applicant for obtaining a certified copy (Ext. R-1) that in fact, after pronouncement of the judgment and order in the proceeding under Page 6 of 20 Commercial Appeal No. 20 of 2019 Section 34 of the Act, the advocate concerned had applied for certified copy on 14-5-2019. The endorsement further reads that it was to be handed over to Mr A.D. Patil of the Irrigation Department, Dhule, who is a staff from the office of the applicant. The further endorsements also clearly show that the certified copy was ready and was to be delivered on 27-5- 2019. Inspite of such a stand and document, the applicant has not controverted this or has not come up with any other stand touching this aspect. It is therefore apparent that the applicant is not coming to the Court with clean hands even while seeking the discretionary relief of condonation of delay."
66. In the civil appeal arising out of SLP (C) No. 15278 of 2020, the impugned judgment of the High Court of Madhya Pradesh dated 27-1- 2020 [M.P. Poorv Kshetra Vidyut Vitran Co. Ltd. v. Swastik Wires, 2020 SCC OnLine MP 3003] relies upon Consolidated Engg. [Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169] and thereby states that the judgment of this Court in N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109 :
(2020) 1 SCC (Civ) 275] would not apply. The judgment of the High Court is wholly incorrect inasmuch as Consolidated Engg.
[Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169] was a judgment which applied the provisions of Section 14 of the Limitation Act and had nothing to do with the application of Section 5 of the Limitation Act. N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109 : (2020) 1 SCC (Civ) 275] was a direct judgment which applied the provisions of Section 5 of the Limitation Act and then held that no condonation of delay could take place beyond 120 days. The High Court was bound to follow N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109 : (2020) 1 SCC (Civ) 275] , as on the date of the judgment of the High Court, N.V. International [N.V. International v. State of Assam, (2020) 2 SCC 109 :
(2020) 1 SCC (Civ) 275] was a judgment of the two learned Judges of the Supreme Court binding upon the High Court by virtue of Article 141 of the Constitution. On this score, the impugned judgment of the High Court deserves to be set aside.
67. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court's judgment was obtained by the respondent on 27-4-2019, the appeal was filed only on 9-9-2019, the explanation for delay being:
"2. That, the certified copy of the order dated 1-4-2013 was received by the appellant on 27-4-2019. Thereafter the matter was placed before the CGM purchase MPPKVVCL for the compliance of the order. The same was then sent to the law officer, MPPKVVCL for opinion.
3. That after taking opinion for appeal, and approval of the authorities concerned, the officer-in-charge was appointed vide order dated 23-7-2019.
4. That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed pursuant to the same and further delay.
5. That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy Department of Page 7 of 20 Commercial Appeal No. 20 of 2019 the State Government, the delay caused in filing the appeal is bona fide and which deserve[s] to be condoned."
68. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also.
69. In the civil appeal arising out of SLP (C) Diary No. 18079 of 2020, there is a huge delay of 227 days in filing the appeal, and a 200-day delay in refiling. The facts of this case also show that there was no sufficient cause whatsoever to condone such a long delay. The impugned judgment of the High Court of Delhi dated 15-10-2019 [Union of India v. Associated Construction Co., 2019 SCC OnLine Del 10797] cannot be faulted on this score and this appeal is consequently dismissed."
16. It also needs to refer herein that even in a case where Section 5 of the Limitation Act is applicable then also primary requirement of the Court is to consider the question of delay strictly on the basis of sufficient cause if the litigant is being able to show otherwise the delay is not to be condoned.
17. The Hon'ble Supreme Court in Post Master General & Ors. Vs. Living Media India Limited & Anr. [(2012) 3 SCC 563], at paragraphs 27 to 29, has observed as under:
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with Page 8 of 20 Commercial Appeal No. 20 of 2019 diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Likewise in State of Madhya Pradesh & Anr. Vs. Chaitram Maywade, [(2020) 10 SCC 667], the Hon'ble Apex Court at paragraph 1 to 5 has held as under:
1. The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v.
Bherulal, (2020) 10 SCC 654] in terms of our order dated 15-10- 2020.
2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., 2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17 months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department.
3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563 : (2012) 2 SCC (Civ) 327 : (2012) 2 SCC (Cri) 580 : (2012) 1 SCC (L&S) 649].
4. We have also expressed our concern that these kinds of the cases are only "certificate cases" to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.
5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up."
Page 9 of 20 Commercial Appeal No. 20 of 201918. The Hon'ble Apex Court in Ramlal, Motilal and Chhotelal Vrs. Rewa Coalfields Ltd., (1962) 2 SCR 762, has held that merely because sufficient cause has been made out in the facts of the given case, there is no right to the appellant to have delay condoned. At paragraph-12, it has been held as hereunder:-
"12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellant's lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellant's duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground.
19. Thus, it is evident that while considering the delay condonation application, the Court of Law is required to consider the sufficient cause for condonation of delay as also the approach of the litigant as to whether it is bona fide or not as because after expiry of the period of limitation, a right is accrued in favour of the other side and as such, it is necessary to look into the bona fide motive of the litigant and at the same time, due to inaction and laches on its part.
Page 10 of 20 Commercial Appeal No. 20 of 201920. It also requires to refer herein that what is the meaning of 'sufficient cause'. The consideration of meaning of 'sufficient cause' has been made in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein, it has been held by the Hon'ble Apex Court at paragraphs 9 to 15 hereunder:-
"9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently"
or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : AIR 1970 SC 1953] , Parimal v. Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".
11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal [(2002) 1 SCC 535 :
AIR 2002 SC 100] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC 1201] .)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when Page 11 of 20 Commercial Appeal No. 20 of 2019 the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266:
"605. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448]
14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225].
15. The law on the issue can be summarised 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 Page 12 of 20 Commercial Appeal No. 20 of 2019 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."
21. Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted deliberately" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover the ulterior purpose as has been held in Manindra Land and Building Corporation Ltd. Vrs. Bhutnath Banerjee & Ors., AIR 1964 SC 1336, Lala Matadin Vrs. A. Narayanan, (1969) 2 SCC 770, Parimal Vrs. Veena @ Bharti, (2011) 3 SCC 545 and Maniben Devraj Shah Vrs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC
157.
22. It has further been held in the aforesaid judgments that the expression 'sufficient cause' should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ram Nath Sao @ Ram Nath Sahu & Ors. Vrs. Gobardhan Sao & Ors., (2002) 3 SCC 195, wherein, at paragraph-12, it has been held as hereunder:-
"12. Thus, it becomes plain that the expression "sufficient cause"
within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or Page 13 of 20 Commercial Appeal No. 20 of 2019 inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause"
or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."
23. It is evident from the judgments referred hereinabove, wherein, expression 'sufficient cause' has been dealt with which means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted deliberately" or "remained inactive".
24. However, the aforesaid proposition has been laid down with respect to the issue of applicability of Section 5 of the Limitation Act and in view of the judgment rendered by the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) the application of Section 5 of the Limitation Act has been held to be acceptable but with the condition that the same is to be applied with all circumspection in a case where there is delay if caused in filing the appeal by taking into consideration the bona fide approach of the litigant concerned and it is not in the negligent manner.
25. It further requires to refer herein that the Hon'ble Apex Court while carving out exception in condoning the delay by applying the provision of Section 5 of the Limitation Act, the primary condition is that the approach of such appellant is to be bona fide and not in negligent Page 14 of 20 Commercial Appeal No. 20 of 2019 manner. Bona fide and negligent are to be read out co-jointly since if a party's approach is bona fide then there must be no negligence.
Further, bona fide and not in negligent manner both are to be taken together in order to consider the conduct of the appellant for the purpose of condoning a short delay.
26. This Court, in order to consider the reason shown in the delay condonation application of 236 days' delay in preferring the appeal is now proceeding to examine as to whether the approach of the appellant can be said to be bona fide and fair and not in negligent manner.
27. The first ground has been taken that the judgment was passed on 22.05.2019 but there was no information to the litigant concerned, the appellant herein. The ground has been taken that after substantial period the appellant came to know about the judgment, thereafter, the appeal could be drafted and filed but very surprisingly without any certified copy of the judgment.
However, the explanation has been furnished that the certified copy of the judgment was misplaced by the advocate clerk. Thereafter, fresh requisition was made for supplying the certified copy of the judgment impugned and it is only after getting the same, the certified copy of the judgment impugned has been filed.
The explanation which has been furnished first that the appellant was not having the knowledge of his case, the same, according to our considered view cannot be said to be acceptable for the other explanation wherein it has been stated that the appeal was filed but without the certified copy of the judgment.
28. This Court is of the view that such thing is not fit to be accepted due to the reason that when after getting information about the impugned judgment, the appeal was drafted, then on what basis it was drafted and how can the ground be taken that copy of the judgment (certified copy) was misplaced by the advocate clerk.
Page 15 of 20 Commercial Appeal No. 20 of 2019This Court, further, is of the view that if the same is to be accepted then this Court will come to the conclusion that approach of the appellant cannot be said to be bona fide rather it is totally in negligent manner in pursuing the appeal by the appellant. Therefore, the aforesaid reason cannot be said to be sufficient cause so that the same is to be considered by way of exception for condoning the delay under the discretionary power of the Court.
29. Learned counsel for the appellant has submitted that the limitation is to be counted from 22.07.2019 to 14.11.2019 period and the period from the 14.11.2019 cannot be said to be under the period said to be period of delay since the appeal was already filed but the same cannot be said to be plausible reason as there is no explanation to that effect in the delay condonation application. However, the same has orally been argued but even considering the oral argument, the same cannot be said to be a ground acceptable ground reason being that when the appeal is to be filed the period of limitation is to be counted from the date of the judgment till the date of filing of the appeal along with the certified copy.
30. The procedure under the Civil Procedure Code is very much clear that if any appeal is being preferred, the Office is to point out the period of limitation upto the date of filing of the certified copy of the impugned judgment/order along with the memo of appeal.
Further, as per Order XLI Rule 1 of Civil Procedure Code, every appeal shall be preferred in the form of memorandum duly signed by the appellant or his pleader and the memorandum shall be accompanied by a copy of judgment. For ready reference, Order XLI Rule 1 of CPC is being referred as under:
"ORDER XLI :
1. Form of appeal What to accompany memorandum.--(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [Judgment].Page 16 of 20 Commercial Appeal No. 20 of 2019
[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] (2) Contents of memorandum.--The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]"
31. Herein, it is the admitted case of the appellant that the appeal was filed on 14.11.2019 but without any certified copy of the impugned judgment since the reason is being taken that the same was misplaced but subsequently, the certified copy of the impugned judgment was filed on 30.09.2020, as such, the period of limitation which has been calculated of 236 days is required to be explained.
32. The ground which has been taken by the learned counsel for the appellant that there is delay up to 14.11.2019 only but there is no contest of the office note, whereby and whereunder, the office has pointed out that the appeal has been filed after the delay of 236 days. Unless the office note is contested then only the question of aforesaid ground will arise but this Court has not found anywhere in the delay condonation application that the delay of 236 days has ever been objected.
33. It needs to refer herein that under the provision of Section 13-IA of the Commercial Courts Act, the appeal is to be filed within the specific period of 60 days or 90 days, as the case may be. As per the content of the said provision, the period of limitation so prescribed is not to be stretched, meaning thereby, there is no application of the provision of Section 5 of the Limitation Act, however, the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) has laid down that the provision of Section 5 of the Limitation Act can be applied but no in Page 17 of 20 Commercial Appeal No. 20 of 2019 routine manner rather in the exceptional circumstances to condone the delay of very short period.
34. This Court since has referred the judgment rendered by the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) wherein the prayer for condonation of delay of 131 days was there for which explanation was furnished of file pushing and administrative exigency; further while refusing to condone the delay of 75 days due to the procedural approval and the ground since the appellant is a public entity under the Energy Department of the State Government the delay caused in filing the appeal has been said to be bona fide and as such deserves to be condoned but such explanation, does not find the same as sufficient ground for condonation of delay. Even the delay of 227 days in filing the appeal was refused to be condoned while passing order in S.L.P. (C) No. 18079 of 2020. The relevant paragraph has already been quoted and referred above.
35. This Court, thus, is of the view that even though the Hon'ble Apex Court has stretched the period to condone the delay which does not mean that the delay is to be condoned in routine manner rather sufficient cause is required to be considered. Such consideration bears more importance where there is no applicability of Section 5 of the Limitation Act under the statutory provision and which is to be considered in the light of the judgment passed by the Hon'ble Apex Court.
36. Therefore, considering the definition of "sufficient cause" as has been held by the Hon'ble Apex Court in Basawaraj & Anr. Vrs. Spl. Land Acquisition Officer (supra) and Ram Nath Sao @ Ram Nath Sahu & Ors. Vrs. Gobardhan Sao & Ors. (supra) as also the ratio laid down at paragraph-63 of the judgment rendered in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Engineers and Contractors Private Limited (supra) that the approach of the appellant is to be bona fide and not in negligent Page 18 of 20 Commercial Appeal No. 20 of 2019 manner, this Court is of the view by taking into consideration the reason for condoning the delay as per the explanation furnished in the delay condonation application that the same cannot be said to be sufficient explanation due to the following reason(s) :
1. In spite of the impugned judgment having been passed on 22.05.2019, the same was brought to the knowledge of the appellant in the month of October, 2019 and thereafter, the memo of appeal was prepared and filled on 14.11.2019 but without annexing the certified copy of the impugned judgment/order as the reason has been stated that the advocate clerk while filing the memo of appeal misplaced the certified copy of the impugned judgment, hence, could not file the same along with the memo of appeal, as such, this Court, taking into consideration the aforesaid reason, is of the view that there is negligence and lackadaisical approach on behalf of the appellant, hence, cannot be said to be sufficient cause to condone the delay.
2. It has further been stated in the delay condonation application that due to pandemic COVID-19, the certified copy of the judgment dated 22.05.2019 could not have been requisitioned, however, the appellant got the certified copy on 24.09.2020 which was filed on 30.09.2020.
But, it needs to be referred herein that the restriction of COVID-19 pandemic was imposed from the month of March, 2020, as such, this Court fails to understand that in what compelling circumstances, the appellant had not requisitioned for getting the certified copy of the impugned judgment/order before the month of March, 2020, i.e., before imposition of restriction due to COVID-19, there is no explanation to that effect in the delay condonation application.
37. This Court, therefore, is of the view as per the ratio laid down by the Hon'ble Apex Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer) Vs. Borse Brothers Page 19 of 20 Commercial Appeal No. 20 of 2019 Engineers and Contractors Private Limited (supra), the reason for condonation of delay cannot be said to be based upon the bona fide approach rather it is in highly negligent manner, hence, the delay in view of the observation so made by the Hon'ble Apex Court in the aforesaid case, as quoted and referred above, cannot be applied in the facts of the present case for the purpose of condoning the delay.
38. In view thereof, the delay condonation application is fit to be dismissed.
39. Accordingly, the Interlocutory Application being I.A. No. 2782 of 2023 stands dismissed.
40. In the result, the appeal also stands dismissed being barred by limitation.
41. Consequent upon dismissal of the appeal, pending Interlocutory Application, if any, also stands dismissed.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
Page 20 of 20 Commercial Appeal No. 20 of 2019