Calcutta High Court
Omkar Tradecomm Llp & Ors vs Mayank Agarwal & Ors on 12 March, 2024
Author: I. P. Mukerji
Bench: I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Ordinary Original Civil Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
APOT 338 of 2023
AP 850 of 2022
GA 1 of 2023
GA 2 of 2023
Omkar Tradecomm LLP & Ors.
Versus
Mayank Agarwal & Ors.
APOT 317 of 2023
AP 850 of 2022
GA 1 of 2023
GA 2 of 2023
Kedarnath Tradecomm LLP & Ors.
Versus
Mayank Agarwal & Ors.
For the Appellants :- Mr. S.N Mookherjee, Sr. Adv,
(APOT 317 of 2023) Ranjan Bachawat, Sr. Adv,
Samrat Sen, Sr. Adv,
Manali Bose,
Paritosh Sinha,
Yash Singhi, Adv,
Somnath Dutta, Adv,
Joydeep Roy, Adv,
S. Samanta, Adv,
For the Appellants :- Samrat Sen, Sr. Adv,
(APOT 338 of 2023) Manali Bose, Adv,
Paritosh Sinha, Adv,
Yash Singhi, Adv,
Joydeep Roy, Adv,
S. Samanta, Adv,
For the Respondent No.1 & 2 :- Anindya Mitra, Sr. Adv,
(APOT 317 of 2023) Krishnaray Thaker, Adv,
Suchismita Ghosh Chatterjee,
Tanay Agarwal,
Chitresh Saraogi,
For the Respondent No.1 & 2 :- Mr. Tilak Bose, Sr. Adv,
(APOT 338 of 2023) Krishnaray Thaker, Adv,
Suchismita Ghosh Chatterjee,
Tanay Agarwal,
Chitresh Saraogi,
Judgment On :- 12.03.2024
I. P. Mukerji, J.:-
Learned counsel for the appellants sought admission of the appeal APOT 338 of 2023 praying for condonation of delay of 66 days in preferring it and of 58 days in preferring the other appeal APOT 317 of 2023. There was divergence of opinion amongst learned counsel for the parties with regard to the exact delay, the respondents alleging that the delay was a little longer. In any event, the delay in preferring each of the appeals is very marginal.
Nevertheless, Mr. Anindya Kumar Mitra, learned senior counsel appearing for the respondents very seriously opposed the admission of the appeal. He argued that even this marginal delay should not be condoned. A short but most interesting argument made by learned counsel was that an applicant for condonation of delay had to show sufficient cause which prevented him from preferring the appeal or application within time. According to him the applicant was required to show some steps in the prosecution of the matter within the period of limitation. At the time of consideration of the delay in filing the proceeding it had to be declared by the court that the delay was the result of sufficient cause. In this case the appellants had taken no steps to file the appeal before expiry of the period of limitation, he argued.
I shall make a more detailed analysis of learned counsel's argument after narrating the arguments made by Mr. S.N. Mookherjee, learned counsel appearing for the appellants.
He placed paragraphs 87-93 of the petition for condonation of delay, admission of appeal and stay.
The impugned judgment and order of the learned trial court was made on 15th June, 2023. The period of limitation for filing the appeal was to expire on 15th July, 2023. Ultimately the appeal was filed on 11th September, 2023.
How was the delay between 11th July, 2023 and 11th September, 2023 explained in the above paragraphs?
2 It is said that on 19th June, 2023, 22nd June, 2023 and 28th June, 2023 several conferences were held by the appellants with their then recorded advocate. After such meetings the appellants decided to change their advocate. They did so. On 5th July, 2023 a meeting was held with him. It appears that the present advocate on record advised the appellants to file an appeal from the impugned judgment and order. Counsel was briefed on 20th July, 2023. The draft was made ready by junior counsel thereafter. A conference was held senior counsel who suggested changes in the draft. These changes were duly incorporated by the junior counsel. On 8th August, 2023 this draft was sent to senior counsel for settlement. Then it transpired that the erstwhile advocate on record had not put in the requisition for drawing up and completion of the impugned judgment and order and for obtaining certified copy thereof.
Necessary leave of the court to put in such requisition was obtained only on 24th August, 2023. The certified copy of the judgment and order was obtained by the advocate on record for the appellant only on 6th September, 2023. It appears from the records that the appeal APOT 317 of 2023 (Kedernath Tradecomm LLP & Ors. vs. Mayank Agarwal & Ors.) was filed on or about 11th September, 2023 whereas the other appeal APOT 338 of 2023 (Omkar Tradecomm LLP & Ors. vs. Mayank Agarwal & Ors.) was filed on or about 15th September, 2023.
Mr. Mitra pointing out the above facts submitted that there was nothing on record to show any conference to have been held in June, as alleged. At any rate even according to the averments made by the appellants that the draft appeal was not prepared by junior counsel within the period of limitation. Hence no positive steps had been taken by the appellants within the period of limitation to enable the court to declare that there was sufficient cause which prevented them from filing the appeal within time. 3 Learned counsel for the respondents filed a supplementary affidavit wherein it was, inter alia, stated that the former advocate on record for the appellants had duly put in the requisition for obtaining certified copy of the judgment and order within time. Thereby, he tried to show that the explanation sought to be advanced by the appellants that filing of the appeal was delayed because the former advocate on record had not even put in such requisition and that such requisition had to be put in by the present advocate on record after obtaining leave of the court, was not to be accepted.
Countering this, learned counsel for the appellants submitted by filing a supplementary affidavit that the requisition the former advocate on record had put in, was to obtain certified copy of the impugned judgment and order. The requisition to draw up and complete the order was not filed, as a result of which preparation of the certified copy of the order could not be proceeded with by the department.
The Supreme Court in its decisions over a long period of time has given us guidance to assess what is to be considered as sufficient cause and what is not to be considered so for not filing an appeal or an application within time.
In Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107, cited by Mr. Mookherjee, the Supreme Court opined that ordinarily a litigant does not derive any benefit by lodging an appeal late. In fact, he runs a serious risk. By not condoning delay a meritorious matter may be lost thereby defeating the cause of justice. If delay is condoned the matter could be decided on merits. The aim of the court should be to do substantial justice. It must be careful in not taking technical considerations into account to dismiss an appeal on the ground of delay, resulting in denial of substantial justice. The court could any consider the delay which was not deliberate or on account of culpable negligence. (see State of West Bengal vs. Administrator, Howrah 4 Municipality & Ors. reported in (1972) 1 SCC 316 also cited by learned counsel).
Two principles enunciated in the judgment have to be taken as presumptions subject to rebuttal. The first is the presumption that an appellant with a delayed appeal does not gain any advantage out of it. This is required to be rebutted by the respondent by proving that some advantage was gained by the appellant or applicant by delaying an appeal or an application. One can think of one example. Suppose A has suffered a money decree. If he prefers the appeal instantly he is required to deposit the decreetal amount. (Order 41 Rule 1(3)) He does not file it and waits for the process of execution against him to be started by the decree holder. Then he files the appeal and asks the court to condone the delay by pleading sufficient cause. Thereafter he secures the decreetal sum. He earns interest on this money throughout the period. If the decree holder eventually becomes the winner in the appeal, he loses that amount of interest by the delay caused by the appellant judgment debtor. The second presumption is that the delay by an appellant is not deliberate or the result of "culpable negligence". This is also subject to rebuttal that the delay was caused deliberately or negligently. If it can be shown that the delay was caused deliberately to provide advantage to the appellant and loss to the respondent then that delay may not be condoned. In that event, dismissal of an appeal on technical grounds would not in any manner defeat the cause of substantial justice.
In Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and Anr. reported in (2010) 5 SCC 459, also cited by learned counsel, the same court discussed the public policy sought to be achieved by enactment of the law relating to limitation. An unlimited period of time for a party to seek legal redress is bound to cause injustice to the party against whom such remedy is claimed. The Limitation Act, 1963 5 seeks to put a restriction in point of time on availing of one's legal remedy. Having stated this policy behind the legislation the Supreme Court laid down the consideration to be taken into account by the court in assessing whether there was sufficient cause for condonation of delay in filing an application within the stipulated time. It remarked that the court should take "a liberal approach in condoning the delay of short duration". In State of Nagaland vs. Lipok AO & Ors. reported in (2005) 3 SCC 752, the Supreme Court ruled that in measuring sufficient cause a justice oriented approach needed to be taken. What mattered was not "the length of the delay but sufficiency of the cause". In that case the delay of 57 days in filing the application was condoned.
Two important decisions were cited by Mr. Mitra. The first was Ajit Singh Thakur Singh And Anr. vs State Of Gujarat reported in (1981) 1 SCC
495. In this judgment the Supreme Court opined that the sufficiency of the cause which prevented the appellant should have arisen within the time stipulated for preferring the appeal. Some events or circumstances, held to be sufficient by the court must have arisen within the period of limitation, preventing the appellant from filing the appeal within the time. If there was no event or circumstance within that period but such event or circumstance occurred after expiry thereof, that would not be taken into account by the court. The same view was reiterated in Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation and Anr. reported in (2010) 5 SCC 459. Learned counsel tried to contend that since the appellants had not taken any substantive action within the period of limitation, there was absence of sufficient cause. That in my opinion is not a proper interpretation of the above Supreme Court judgments. What has to be taken into account is an action or inaction within the period of limitation. Thereafter one has to consider why the action or rest of the action required to file the appeal within time could not be taken within the stipulated period. Those reasons why the action or 6 inaction or rest of the action could not be taken should be assessed as sufficient or insufficient. It could depend on a case to case basis. In this case, the delay has been very marginal. There is nothing to show that the appellants have gained any advantage out of delayed filing of the appeal or there has been negligence on their part.
There has been a change of advocates from the trial court to the appeal court. The erstwhile advocate on record for the appellant had only given requisition for obtaining certified copy of the judgment and order. For want of requisition to draw up and complete the order issuance of the certified copy was withheld by the department. Of course more than the required time was taken by lawyers to draft the appeal but a litigant should not be victimized for any default on the part of the advocate, as repeatedly reminded by the Supreme Court. It would not serve the cause of substantive justice if on this technical ground the appeal was dismissed resulting in non-consideration of the dispute on merits. For all those reasons, I condone the delay in filing both the appeals. I direct the department to admit the appeals. The applications (GA 1 of 2023 & GA 2 of 2023) to the extent of their seeking condonation of delay are allowed. The other prayers in the applications shall be considered separately and are kept open.
List the appeals and the connected applications as "New Application" on 20th March, 2024.
(I. P. Mukerji, J.) Biswaroop Chowdhury, J.:-
As both the applications in the above mentioned appeals involved common point of law and common facts they were heard analogously and are to be disposed of by Common order.
7 The Appellants before this Court are the petitioners in an application under Section 9 of the Arbitration and Conciliation Act 1996 and are aggrieved by the Order dated 15th June, 2023 passed in A P No 850 of 2022, and A P. No 851 of 2023 by a Learned Single Judge of this Court. The Appellants along with the Memorandum of Appeal have filed an interlocutory application praying for leave to prefer this appeal without certified copy with a prayer for stay of the impugned order, and stating the grounds for delay in preferring these appeals of a period of 58 days and 66 days respectively.
Although the usual procedure is to hear the point of admission of appeal along with the ground of delay but as the respondents chose to contest the ground for condonation of delay by filing affidavit in opposition and the parties have argued on the point of delay at length without advancing any argument on the point of merits it is reasonable to decide the point of limitation before proceeding to hear on other issues:
The petitioners/appellants of APOT. No- 317 of 2023 in the trial court filed an application under section 9 of the Arbitration and Conciliation Act 1996 being A.P No- 850 of 2023 praying for the following reliefs
a) ' An order of injunction be passed for preserving the assets of Kedarnath Tradecomm LLP which are the subject matter of disputes by and between the parties in which the petitioners seek to refer the disputes to arbitration in terms of the primary LLP agreement dated March 19,2021 entered into by and between the parties.
b) An order directing the respondent nos 1 and 2 to maintain status quo in respect of the assets of Kedarnath Tradecomm LLP as well as the composition of the partners in view of the provisions contained in the LLP agreement dated March 19, 2021 read in conjunction with the first and second LLP agreements thereto.
c) An order on the respondent nos 1 and 2 to disclose the accounts to the petitioners as mandated under clause 22 of the LLP agreement dated March 19, 2021 and to act in accordance with law. 8
d) Ad- interim order in terms of prayers above.
e) Costs of and incidental to this application be paid by the Respondents.
f) Such further or other order or orders be made and/or directions be given as would afford complete relief to your petitioners.
And your petitioner as in duty bound shall ever pray.' The appellants petitioners in APOT- 338 of 2023 in the trial court filed an application under section 9 of the Arbitration and Conciliation Act 1996 being AP. No- 851 of 2023 praying for the following reliefs:
a) An order of injunction be passed for preserving the assets of Omkar Tradecomm LLP which are the subject matter of disputes by and between the parties in which the petitioners seek to refer the disputes to arbitration in terms of the primary LLP agreement dated March 19, 2021 entered into by and between the parties.
b) An order directing the respondent nos 1,2, and 3 to maintain status quo in respect of the assets of Omkar Tradecomm LLP as well as the composition of the partners in view of the provisions contained in the LLP agreement dated March 19,2021, read in conjunction with the first and second LLP agreements thereto.
c) An order on the respondent nos 1,2, and 3, to disclose the accounts to the petitioners as mandated under clause 22 of the LLP agreement dated March 19, 2021 and to act in accordance with law.
d) Ad-interim order in terms of prayers above.
e) Costs of and incidental to this applications be paid by the Respondents.
f) Such further or other order or orders be made and/or directions be given as would afford complete relief to your petitioner.
And your petitioner as in duty bound shall ever pray.
9 On January 30, 2023 the Learned Single Judge was pleased to pass an order directing respondent no 1 and 2 to maintain status quo in respect of the Petitioner/Appellant no-1 LLP as well as the composition of the partners in view of the provisions contained in the LLP Agreement dated March 19, 2021 read in conjunction with the first and second supplementary agreements dated June 21, 2022 and June 23, 2022. On or about February 20, 2023 the respondent No 1 and 2 of the respective Arbitration cases filed applications being G.A. No 1 of 2023 arising out of AP No 850` of 2022, and G.A- 1 of 2023 arising out of A.P. 851 of 2022 inter alia, praying for vacating and/or recalling of the order dated January 30, 2023. By Order dated June-15, 2023, the Learned Trial Judge was pleased to allow G.A. No 1 of 2023 arising out of both the Arbitration cases AP- 850 of 2022, and 851 of 2022 and recall the orders dated January 30, 2023. The Appellants/ Petitioners were also imposed costs of Rs 50,000/-. The Appellants being aggrieved by the order dated June 15, 2023 in both Arbitration cases have come up with the instant appeals. The Appellants/ Petitioners have contended that immediately upon the Judgment and Order of Learned Trial Court being passed they sought legal advice from their erstwhile advocates as to the next steps to be taken. Several conferences were held on 19th June 2023, 22nd June 2023, and on 28th June 2023, with the advocate of the petitioners/appellants regarding the next course of action. Thereafter the appellants decided to take change from erstwhile advocate and appoint the present advocate on behalf of the appellants. Upon such decision being taken a meeting was held with current advocate on record on 5th July 2023 when necessary facts related to the case were discussed at length and the documents pertaining to entire case were handed over. The current advocate thereafter was of the view that appeals should be filed immediately from the impugned orders and judgments dated 15th June 2023. The appellants thereafter instructed their advocate to take steps for filing of the Memorandum of Appeal and related application for 10 stay of the Orders dated 15th June 2023 passed in both the Arbitration petitions. Thereafter the draft of the Memorandum of Appeals and the Applications for stay were made ready by the Junior Counsel on or around 20th July 2023, and a conference was held with the Senior Counsel engaged in the matter when certain changes were discussed. The Learned Junior Counsel thereafter made necessary changes in the draft and the draft which was required to be finalized was ultimately sent to the Senior Counsel on or about 8th August 2023. It is further contended that when the current advocate-on-record was taking necessary steps for filing the instant applications it transpired that the requisition for drawing up and completing the judgment and order dated 15th June 2023, passed by Learned Trial Court was not made by the erstwhile advocate to the concerned department. It is contended that immediately upon coming in to know of the said non-furnishing of the requisition, the matter was mentioned before the Hon'ble Court and necessary leave was obtained on 24th August by present advocate for drawing up and completing the Order dated 15th June 2023 passed by learned trial court. On 6th September 2023 the certified copy of the order passed by learned trial court was made ready and the appeals were filed on 11th September 2023, and 19th September 2023.
The respondents no 1 and 2 have filed an affidavit in opposition to the explanation given by the Appellant for delay caused in preferring the Appeal, APOT- 317 of 2023 and same arguments were raised without affidavit in APOT- 338 of 2023. However with regard to APOT- 317 of 2023 it is contended that the appellant/ petitioner no 3 has not been authorized to file the above appeal APOT-317 of 2023. It is further contended that the said partnership firms has been wrongfully and illegally impleaded as the appellant no-1 in the present proceedings. The respondents have also contended that the time to appeal from the judgement and order dated 15th June 2023 has expired and save and except the purported change of 11 Advocate on Record, no cause whatsoever has been shown as to why the petitioners did not prefer the appeal within the time prescribed thereof. The respondents no 1 and 2 have contended that admittedly even the application for drawing up and completion of the certified copy of the judgement and order dated 15th June 2023 was made more than 40 days after expiry of the period of limitation, for preferring an appeal from the said order. The said respondents have further contended that although it is alleged that the Photostat attested copy of the judgement and order dated 15th June 2023 was obtained by the Advocate on Record of the petitioners on 6th September 2023, the said petition appears to have been affirmed on 11th September 2023, i.e. after a delay of about 58 days from the expiry of the period of limitation. The respondents have contended that it appears from the allegations made in the said explanation for delay that the appellants/ petitioners no 2,3 and 4 were not inclined to prefer any appeal and the present appeal has been preferred only on legal advice and there is no explanation whatsoever for the delay of 58 days in preferring the above appeal. It is contended that the appellants/ petitioners no-2, 3 and 4 have been negligent and answering respondents would be prejudiced if the delay in filing the appeal is condoned. The appellants have filed affidavit in reply to the opposition submitted by respondent no-1 and 2. The Appellants in the affidavit in reply re-iterated the contentions made in the explanation for condonation of delay. The appellants have contended that the appellant no- 3 being the partner of the firm is authorized to make and affirm the petition. The appellants have further contended that they have shown sufficient cause to condone the marginal delay of 58 days. The appellants have submitted that for the interest of justice the marginal delay of 58 days in preferring the appeal may be condoned by this Hon'ble Court. In the Appeal APOT- 338 of 2023 the delay is about 66 days and the same argument is adopted by respondent no-1 and 2 as it is done in APOT- 317 of 2023.
12 Heard Learned Counsel for the appellants and Learned Counsel for the respondent no-1 and 2 of both the appeals. Perused the petition and affidavits filed and the materials on record.
Mr. S. N. Mookherjee Learned Counsel for the Appellants submits that the appellants have sufficient cause for preferring the appeal after period of limitation. Learned Counsel draws attention to the relevant paragraphs of the explanation for condonation of delay and submits that due to change of Advocate and mistake of the former Advocate in putting the requisition for drawing up and completing the order the appeal could not be preferred within the period of limitation.
Mr. Anindya Mitra Learned Counsel for the respondent no-1 and 2 submits that the appellants have not shown sufficient cause for delay in preferring the appeal. Learned Counsel draws attention to the paragraphs of the explanation for condonation of delay and submits that although the appellants have contended of conferences being held on 19th June 2023, 22nd June 2023 and on 28th June 2023 with the former Advocate but have not stated the outcome of the said conferences.
The following decisions were relied upon by the Learned Counsels. • The State of West Bengal Vs The Administrator Howrah Municipality and others [ Reported in (1972) 1 SCC.P-366] • Collector Land Acquisition Anantnag and Another Vs Katiji and Others [Reported in (1987) 2 SCC.P-107] • Ajit Singh Thakur Singh and Another Vs State of Gujrat [ (1981) 1 SCC P-495] • State of Nagaland Vs Lipak AO and Others [Reported in (2005) 3 SCC. P-752] • Oriental Arena Chemical Industries [ Reported in (2010) 5 SCC.P- 459] 13 Before proceeding to discuss on the merits of the application regarding condonation of delay, at the outset it is necessary to discuss the power of the court in admitting a case after the prescribed period of limitation. Section 5 of the Limitation Act 1963 provides as follows:
'Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or application within such period.' Thus the power of the Court to condone delay in filing application or appeal after the prescribed period under Indian Limitation Act 1963 is provided under Section 5 of the said Act. However the guidelines to exercise such power can be obtained from different judicial pronouncements.
In the case of Collector Land Acquisition Anantnag and Another (Supra) the Hon'ble Supreme Court observed as follows:
"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner."
In the case of State of West Bengal Vs Administrator Howrah Municipality and others (Supra) the Hon'ble Supreme Court observed as follows:
'Mr. D. Mukerji learned counsel for the first respondent is certainly well-founded in his contention that the expression "sufficient cause"
cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the Statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be 14 shown by courts to a private party when he claims the protection of S 5 of the Limitation Act should also be available to the State. In the case before us, it must be stated in fairness to the learned Solicitor General that he has not contended that the State must be treated differently. On the other hand, his contention is that the reasons given by the appellant, which, according to him will establish "sufficient cause" have not at all been adverted to, much less, considered by the High Court. In our opinion, the contention of the learned Solicitor General is perfectly justified in the circumstances of this case. The High Court, certainly, was not bound to accept readily whatever has been stated on 'behalf of the State to explain the delay. But, it was the duty of the High Court to have scrutinised the reasons given by the State and considered the same on merits and expressed an opinion, one way or the other. That, unfortunately, is lacking in this case.
It has been pointed out by this Court in-Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. (1) as follows:
"In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for or making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be, exercised to advance substantial justice.' As has been 15 observed by the Madras High Court in Krishna v. Chattappan(2) s. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction go as to advance substantial justice when no negligence for inaction nor want of bona fide is. imputable to the appellant."
From the above observations it is clear that the words "sufficient cause"
should receive a liberal construction so, as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the appellant."
In the case of State of Nagaland (Supra) the Hon'ble Court observed as follows:
'8. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
16
9. What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh V. Kanshi Ram it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.' In case of Ajit Singh (Supra) the Hon'ble Supreme Court observed as follows:
'At the outset, it is urged by learned counsel for the appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State Government took a decision not to file an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired. A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appears to be that the appeal was not filed at first because the State Government 17 saw no case on the merits for an appeal, and it was filed only because the High Court had observed - and that was long after limitation had expired - that the case was fit for appeal by the State Government. Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay' In the case of Oriental Aroma Chemical Industries limited (Supra) the Hon'ble Supreme Court observed as follows:
14. 'We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 18
15. 'The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes are elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector (L.A.) V. . Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil.' As the Respondents no-1 and 2 have contended that the appellants have not explained delay of 58 days and 66 days save and except the change of Advocates let us consider paragraph 87, 88, and 89 of the petition GA 1 of 2023 of APOT- 317 of 2023 and GA-1 of 2023 of APOT- 338 of 2023 para-
80,81 and 82 where the appellants have sought to explain the delay. The appellants in the explanations have contended that pursuant to the order dated June 15, 2023 passed by Learned Trial Court, held conferences on 19th June 2023 22nd June 2023 and on 28th June 2023 with the former advocate of the petitioner. Thereafter decision being taken a meeting was held with Current Advocate-on-Record on 5th July 2023 when the necessary facts related to the case were discussed at length and the documents pertaining to entire case was handed over.
It is contended that the present advocate on record was of the view that an appeal should be filed immediately from the impugned order and judgment dated 15th June 2023. In view of such instructions the draft of the Memorandum of Appeal and the Application for stay was made ready by the Junior Counsel on or around 20th July 2023. Thereafter a conference was held with the Senior Counsel engaged in the matter when certain changes were discussed. The Learned Junior Counsel thereafter made necessary changes in the draft and the draft which was required to be finalized was 19 ultimately sent to the Senior counsel on or about 8th August 2023. However when the current Advocate-on-Record was taking necessary steps for filing the instant applications by making it ready for filing it transpired that the requisition for drawing up and completion of the judgment and order dated 15th June 2023 passed by Learned Trial Court was not filed by former advocate. Immediately upon coming in to know of the said non filing of requisition the matter was mentioned before the Hon'ble Court and necessary leave was obtained for drawing up and completing the order dated 15th June 2023 on 24th August 2023. It is only thereafter that the Xerox Certified Copies of judgments and Orders passed in both Arbitration petitions 850 of 2023 and 851 of 2023 dated 15th June 2023 were obtained by the Advocate-on-Record on 6th September 2023. Although in the supplementary affidavit filed by the respondent no-1 and 2 it is contended that the certified copies were applied on 16th June 2023 and 19th June 2023 but the appellants in the rejoinder has contended that as the requisition for drawing up and completing the order dated 15th June 2023 was not filed by the former Advocate which is the requirement under law, mere obtaining certified copies without submission of requisition for drawing up and completing the impugned order does not entitle appellants in filing appeal. Thus upon perusing the explanation for condonation of delay as furnished by the appellants it will appear that within period of one month they held 3 conferences with the former advocate and thereafter upon deciding to take change from the erstwhile advocate met the present advocate on record on 5th July 2023 which was well within the period of limitation. After necessary discussion with the present advocate on record documents were handed over to him and it was decided to prefer an appeal from the Judgement dated 15th June 2023, and the matter was made ready by the Junior Counsel on or around 20th July 2023. Thus it will appear from the contention that after taking a decision on 05/07/2023 for preferring an appeal the matter was sent to learned Junior Counsel for drafting the appeal, and the same was made ready by the Junior Counsel 20 on or around 20th July 2023. Therefore it took about 15 days to get the draft of Memorandum of Appeal ready. On getting the draft ready a conference was held with the Senior Counsel engaged in the matter when certain changes were discussed. After the changes were incorporated by the junior counsel it was ultimately sent to the Senior Counsel on or about 8th August 2023. Now if we stop here for the time being we will notice that when the appeal was required to be filed within 15th of July 2023 it was not filed till 8th August 2023 after expiry of about 23 days from the last date of the limitation period. A question therefore will come in our mind as to what extent the appellants are liable for this delay of 23 days till 8th August 2023, the answer to which can be obtained from paragraph 87, 88 and 89 and paragraph 80, 81 and 82 of the respective petitions. The appellants have held three conferences with their former advocate, and thereafter took decision to obtain change and subsequently met and engaged the present Advocate on Record on 5th July 2023, when already twenty days passed from the date of Order of Learned Trial Court. We have to keep in our mind that a litigant after pursuing a litigation for a considerable period and being unsuccessful requires a reasonable time to take a decision and consult any Learned Advocate for opinion as to whether he may move the higher forum against the Order of Trial Court. A person who is unsuccessful in Trial Court should not be compelled to act in undue haste and prefer an appeal without obtaining legal opinion and thereafter face the risk of another failure. Naturally when legal opinion is to be obtained conferences with Learned Advocate are necessary and in this matter conferences were held with the former Advocate of the appellants on three different dates prior to taking decision of engaging new advocate on obtaining change. It further appears that upon deciding to obtain change from former advocate and meeting the present advocate appellants took about 7 days which is not an unusual delay. We should remember that a litigant apart from pursuing his case has to look after his own business and occupation, and thus he may not be expected to attend Advocates Chamber or Court on all days. 21 Moreover a person can attend the Chamber of an Advocate as per the date and time given by the said Learned Advocate.
Upon meeting the present advocate on 5th July 2023 and obtaining legal opinion to prefer this appeal, necessary instruction was given to the present advocate to draft and prepare the appeal. Now if we proceed to look at the next stage with regard to the steps taken by the present advocate regarding drafting of the appeal it will come to our notice that from 5th July 2023 it took about 15 days to draft the appeal and get the same ready on 20th July 2023 when the period of limitation was already over, and 5 days already passed. As the appellants gave necessary instruction to the Learned Advocate to prepare the appeal the appellants had no role to play till the appeal is drafted and made ready. Now the question is whether this delay is attributable to the appellants. As the appellants engaged an Advocate to conduct his case which includes drafting the case, and making it ready for filing and taking such other incidental steps we can understand that prior to intimation by his Learned Advocate to attend Court with regard to affirmation of affidavit he has no role to play. Learned Advocate who is instructed to prepare the case may either prepare himself or may brief a senior in the matter with the consent of the litigant either for drafting or for settling the petition. The Learned Advocate may thereafter attend conference at the chamber of the Senior engaged by him either with his client or alone. In either of the cases the litigant has no control over the time taken by his learned Advocate to prepare the case and make it ready for filing neither has the litigant any control over the date fixed for conferences. Thus a litigant has to wait patiently for the case to be made ready by his Learned Advocate. As it will further appear in this matter that pursuant to making draft of appeal finalized the same was send to the Learned Senior Counsel on or about 8th August 2023 when about 23 days passed after expiry of limitation. As this period of delay was due to the arrangement made by Learned Advocate on record, junior counsel and 22 senior counsel to which the appellants had no control it cannot be said that delay is attributable to the appellants. Now the penultimate phase starting from 8th August 2023 and ending on 11/09/2023 and 19/09/2023 the dates when the appeals were finally filed regarding which the appellants have submitted explanation is to be considered. It appears from paragraph 89, and 82 of the petitions that pursuant to the appeal being made ready the present advocate on record found that the requisition for drawing up and completion of the judgments and orders dated 15th June 2023 were not made by the erstwhile advocate, to the concerned department. This fact is not disputed by the respondents. On coming in to know about non- furnishing of the requisition the matter was mentioned before this Hon'ble Court and necessary leave was obtained on 24th August 2023 to draw up and complete the Orders dated 15th June 2023 passed in both the Arbitration Petitions. Thus the Learned Advocate for the appellants took about 18 days to obtain leave from court after ascertaining the position that the requisition for drawing up and completing the Order dated 15th June 2023 was not filed by the former advocate. Hence this delay to obtain leave from this Hon'ble Court to draw up and complete the Order dated 15th June 2023 is also not attributable to the appellants.
The Certified copies of the Orders passed by the Learned Trial Court were made ready on 06/09/2024 and the appeal APOT- 317 of 2023 was filed on 11/09/2023 and APOT- 338 of 2023 was filed on 19/09/2023. Upon persuing the series of steps taken by the appellants and their Learned Advocates as contended by the appellants in their explanation for condonation of delay of 58 days and 66 days, it will appear that there is hardly any default on the part of the appellants. The explanation provided, shows that at the very outset the former advocate of the appellants committed a mistake by not putting the requisition for drawing up and completing the Order dated 15th June 2023. Upon engaging the present advocate and upon taking a decision to prefer this appeal and issuing 23 necessary instructions for the same the present advocate on record committed another mistake by not verifying from the appellants whether requisition for drawing up and completing the order, was submitted by former advocate and as to whether certified copy is already applied for together with the relevant documents. It is due to this mistake the appeal could not be filed after being made ready. Now with regard to the time taken by the Learned Advocate in preparing the appeal by the junior counsel and thereafter getting it finalized by Senior Counsel after holding conferences it will appear that the appellants hardly had any role with regard to such drafting of appeal and getting it finalized. Thus this delay of preferring this appeal is due to mistake of Learned Advocates in taking steps in accordance with law and in drafting and getting the appeal finalized for being filed. When an appeal is prepared in the office of Learned Advocate and there are pleadings regarding steps taken by Learned Advocate and the time taken to prepare the appeal, such contentions cannot be disbelieved as the same is presented before the court by the said learned advocate with responsibility showing his role in the delay. Similarly when the matter is submitted by Learned Senior Counsel before court it has to be relied upon because the petition also mentions about the date when the draft of appeal was finalized and with regard to conferences being held with Senior Counsel. As the present case involves mistake of Learned Advocates and delay on their part the point for consideration is whether mistake and delay on the part of Learned Advocates is ground to condone the same.
In the case of Ashok V. Rajendra Bhausaheb Mulak reported in (2012) 12 SCC P-27 the Hon'ble Court observed as follows:
'The petitioners appear to have been advised that the orders could be challenged only by way of SLPs. That advice cannot in the circumstances be said to be a reckless piece of advice nor can the petitioners be accused of lack of diligence in the matter when the 24 SLPs were admittedly filed within the period of limitation stipulated for the purpose. The decision of this court in Deputy Collector Northern Sub-Division Panaji V Communidade of Bambolim (1995) 5 SCC 333, recognizes a bona-fide mistake on the part of the counsel in pursuing a remedy as a good ground for condonation of delay in approaching the right forum in the right kind of proceedings. The limitation prescribed for filing an appeal under Section 116 A is just about 30 days from the date of the order. There is therefore a delay of nearly 20 days in the filing of the appeal which deserves to be condoned. We accordingly allow the applications for conversion and for condonation of delay in both the special leave petitions and direct that the SLPs shall be treated as appeals filed under section 116 A of the Representation of the People Act.' Thus from the decision of the Hon'ble Supreme Court in the case of Ashok V Rajendra Bhausaheb it will appear that courts may use the discretion to condone delay if it is due to bona-fide mistake on the part of Learned Counsel in pursuing a remedy. Now we have to consider whether courts should exercise discretion in condoning delay when it is due to laches of learned advocate.
It is to be remembered that advocates are not merely agents of the litigants but officers of Court. Whenever a litigant entrusts an advocate with his case he reasonably expects that the Learned Advocate will take all necessary steps required under law, and it is the professional duty of an advocate to see that justice is done to his client. As advocates are officers of court and plays role in the administration of justice any laches or negligence on the part of advocates by which litigants suffer prejudice should be prevented by taking reasonable care by the Learned Advocate and where negligence is already committed courts may use the discretion to cure the same where it is practicable by condoning the delay caused in preferring any appeal or application. In case of inordinate delay in preferring appeal or application 25 beyond the period of limitation it is more reasonable for the court to condone the delay caused due to laches of Learned Advocate in preferring such appeal or application rather than refusing to condone delay and referring the litigant to proceed against the Learned Advocate for damages before another forum. Thus courts should normally condone the delay. As advocates are officers of Court any prejudice caused to a litigant due to delay and laches of his learned advocate will bring disrepute to the institution. Hence courts should normally lean in favour of condonation of delay.
The Hon'ble Supreme court with regard to the discretion of condonation of delay has made the following observation in the case of Sheo Raj Singh Vs Union of India reported in AIR-2023 S.C P-5109.
"31". The order under challenge in this appeal is dated 21st December 2011. It was rendered at a point of time when the decision in Mstkatji (Supra) Ramegowda (Supra) Chandra Mani (Supra). K.V Ayisumma (Supra) and Lipak AO (Supra) were holding the field. It is not that the said decision do not hold the field now, having been overruled by any subsequent decision. Although there have been same decisions in the recent past.[ State of M.P, vs Bherulal is one such decision apart from University of Delhi (Supra) which have not accepted governmental lethargy, tiredness and indolence in presenting appeals within time as sufficient cause for condonation of delay, yet the exercise of discretion by the High Court has to be tested on the anvil of liberal and justice oriented approach expounded in the aforesaid decisions which have been referred to above. We find that the High Court in the present case assigned the following reasons in support of its order.
a) The law of limitation was founded on public policy, and that some lapse on the part of a litigant by itself would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice. 26
b) The expression sufficient cause is elastic enough for courts to do substantial justice. Further when substantial justice and technical considerations are pitted against one another the former would prevail.
c) It is upon the courts to consider the sufficiency of cause shown for the delay and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further the merits of a claim were also to be considered when deciding application for condonation of delay.
d) Further, a discretion should be drawn between inordinate unexplained and explained delay where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the Government functionary and the Government Counsel on record before the Reference Court.
e) The officer responsible for the negligence would be liable to suffer and not public interest through the state. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.
32. Given these reasons we do not consider discretion to have been exercised by the High Court in an arbitrary manner. The order under challenge had to be clearly wrong order so as to be liable for interference which is not.' Upon perusing section 5 of the Limitation Act 1963 it will appear that courts are empowered to condone delay if sufficient cause is shown by the applicants and Judicial Pronouncements have laid down the guideline that section 5 is to be construed liberally so as to do substantial justice to the parties. Inspiration in this regard can be drawn from the observation made by the Hon'ble Supreme Court in the case of Collector Land Acquisition Anantnag and Another (Supra) where the Hon'ble Court observed as follows:
27
'The legislature has conferred the power to condone delay by enacting section 5 of the Indian Limitation Act 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court.' Upon being inspired by the observation of the Hon'ble Supreme Court as mentioned above, we may realize that when a statute has conferred legal remedies of preferring any application appeal or revision or review against an order passed by a court or tribunal reasonable opportunity should be given to the litigant to exhaust the remedy by condoning the delay. Courts should not normally close the doors of justice by refusing to condone the delay unless it is a very exceptional case and condoning delay will cause miscarriage of justice to the opposite party. Again upon perusing the observation of the Hon'ble Supreme court in the case of Raj Singh (Supra) where the Hon'ble Supreme Court by upholding the order of Kerala High Court in the said case made certain observations we can also draw our enlightment. The observation of the Hon'ble Court in the case of Raj Singh (Supra) are as follows:
31. 'We find that the High Court in the present case assigned the following reasons in support of its order.
a) 'The law of limitation was founded on public policy, and that some lapse on the part of a litigant by itself would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice.
28
b) The expression sufficient cause is elastic enough for courts to do substantial justice. Further when substantial justice and technical consideration are pitted against one another the former would prevail.
c) It is upon the courts to consider the sufficiency of cause shown for the delay and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further the merits of a claim were also to be considered when deciding application for condonation of delay.' Thus from the decisions of the Hon'ble Supreme Court in the case of Surjit Singh Katra (Supra) and Sheo Raj Singh (Supra) we can draw our enlightment on the ground that as courts have the duty to see that substantial justice is done such duty should be discharged by condoning delay in the normal circumstances even if there is some lapse on the part of the litigant. Further the merits of a claim are also to be considered when deciding application for condonation of delay. Now with regard to condonation of delay in case of some lapse on the part of litigant although courts may condone the delay for the purpose of doing substantial justice, but the question comes as to when there is inordinate delay or gross negligence on the part of the litigant without cause how the court should exercise the discretion.
Whether a delay is inordinate or there is gross negligence on the part of litigant without cause will depend upon the facts and circumstances of each case. Although delay may not be condoned where it is inordinate without cause or gross negligence but sometimes what apparently appears to be inordinate delay without cause or gross negligence may not be so when the matter is looked into thoroughly. We cannot ignore the reality that a litigant after pursuing a litigation for a long period after disposal of the case becomes tired and exhausted. He also becomes depressed to some extent when he looses the case. In such a situation he cannot be expected 29 to take a decision in the short period. Incidents of a litigant suffering ailments mental depression, financial hardship on account of litigation is also not uncommon. Unless a litigant be given some reasonable breathing time he cannot be expected to take a decision. As a litigant apart from attending court and looking after litigation has to look after his own business and occupation and has his personal life also, he cannot be compelled to leave aside everything, and attend court and advocates chamber to save the case from being barred by limitation, and if such compliance is insisted it will deprive a litigant from basic rights of life. Just like a student who has become unsuccessful in a final examination of a school or college is required to appear in the said examination for a second time in a short period, he will be at a loss and will not be able to gain confidence whether to appear or not to appear within the short period, moreover depression caused by failure may stand in the way for the said student to appear in the examination. Similarly a litigant after losing a case requires time to take a decision regarding preferring appeal or revision. The period provided in the Limitation Act 1963 for different classes of suits ranges from 1 year to twelve years but with regard to appeal or revision it ranges from one month to three months, and this limited time is also cause for delay in preferring appeal in most cases. As in the case of suit a litigant gets sufficient time to institute it after the cause of action arises such time is very less with regard to appeal, revision, application or review. Further at the time of filing a suit a litigant is usually not tired as he has to set the ball in motion within the prescribed period of limitation, but after dealing with the case for a long period in the suit or proceedings and being unsuccessful it is obvious that the litigant will be tired and exhausted and requires a reasonable time to take decision. Although it is the prerogative of the legislature whether to enhance the period of limitation or not but courts may use discretion and take a liberal view to condone delay for doing substantive justice. As the legislature has prescribed limitation period for filing different suits ranging from one year to twelve years leaving no 30 discretion for the courts to exercise in case suit is filed beyond the period of limitation, on the other hand the legislature has prescribed period of limitation for preferring appeal, applicants review or revision ranging from one month to three months and giving discretion to the courts to condone the delay if sufficient cause is shown. Thus courts have discretion to take a liberal view in condoning the delay in the interest of justice. It is well settled that once court has found that a litigant/ applicant has made inordinate delay in preferring an appeal revision or application without cause and it appears that the appeal, or revision has no merits and the object of preferring the appeal or revision is to frustrate the rights of the opposite party to enjoy the fruits of the decree and to cause harassment to the opposite party Courts should not condone the delay. Normally a litigant does not benefit by preferring the appeal revision or application after period of limitation but if from the record it appears that act of the applicant is malafide there should be refusal to condone the delay. A litigant gets the fruit of a decree or award when the said suit or proceedings are disposed, and reaches its finality when appeal, revision or review is not preferred within the period of limitation. Thus some rights are vested in the said person. Whenever such right is to be divested by his opponent after considerable period from the expiry of limitation without any cause the opposite party is definitely said to be prejudiced and the Courts should exercise caution in condoning the delay specially when the appeal, review or revision has no merits. Same principle may not apply in case of appeal, revision or review from an interlocutory order, as in such a situation the opposite party cannot be said to be seriously prejudiced, as the suit is not finally disposed and there can be no question of receiving the fruits of decree. Thus there is always scope for using discretion to condone the delay, in the interest of justice.
The instant appeals are also against interlocutory order and the main dispute is to be decided by the Arbitration and Arbitration proceedings is yet to commence. Thus serious prejudice cannot be said to be caused to the 31 opposite parties. In the instant matter although delay is primarily caused due to laches of Learned Advocates in taking steps in accordance with law and preparing the appeal but the respondents have contended that the period 06/09/2023 to 11/09/2023 and 06/09/2023 to 19/09/2023 are unexplained. Now in this regard it is to be considered the steps taken by the appellants pursuant to the order of the Learned Trial Judge. The appellant pursuant to the order passed by Learned Trial Judge have taken necessary steps by attending conferences with both the former advocate and present advocate. Although the appellants came to Court after five days and thirteen days after the certified copies of the orders of the Learned Trial Court were obtained, this delay cannot be termed as fatal as pragmatic view is to be taken while considering condonation of delay. Upon considering the facts of the case, the period of delay and the explanation given we are of the view that the appellants have shown sufficient cause for condoning the delay, thus delay should be condoned. We thus condone the delay of preferring this appeal.
Urgent certified photo copy of this judgment and order if applied for be furnished to the appearing parties on priority basis upon companies of necessary formalities.
(Biswaroop Chowdhury, J.) 32