Calcutta High Court (Appellete Side)
Messrs Serajuddin & Co vs Union Of India & Ors on 16 February, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
And
The Hon'ble Mr. Justice Sankar Acharyya
CAN 7975 of 2016
in
FMAT 1091 of 1982
(CO 5087 of 2001)
Messrs Serajuddin & Co.
Vs.
Union of India & Ors.
For the appellant/applicant: Mr. D.N. Sharma
Mr. Aniruddha Roy
Mr. Ratnesh Kumar Rai
Mr. Anunoy Basu
Mr. Srinjoy Bhattacharya, Advocates.
For the Respondent no.2: Mr. Surya Prasad Misra, Ld. Advocate
General, State of Odisha
Mr. Pravat Kumar Muduli
Ms. Papiya Banerjee Behani, Advocates.
Judgment on: 16th February, 2017.
Biswanath Somadder, J.
This is an application seeking recall of an order of dismissal of an appeal dated 21st June, 2001, upon condonation of delay in preferring the same after a period of more than 15 (fifteen) years.
Before we proceed to take up the instant application for its consideration on merit, we propose to look into the records of the case. The records reveal that a writ petition was filed by one M/s. Serajuddin & Co. - describing itself to be a partnership firm registered under the Indian Partnership Act - before the First Court sometime in the 1979. That writ petition was numbered as CR No. 2348 (W) of 1979. A judgment and order was passed by a learned Single Judge on 21st April, 1982, in that writ petition against which an appeal was preferred, being FMAT 1091 of 1982. Consequent upon filing of the appeal, an application for injunction was taken out by the appellant on 29th April, 1982, which was heard for a couple of days - on contest - in May 1982 and was finally dismissed on 12th May, 1982, upon the prayer for stay being refused. Certain directions were also given by the Appeal Court consequent upon dismissal of the application. The order dated 12th May, 1982, reads as follows:
"The prayer for stay is refused. The application is dismissed.
Cyclostyled or printed paper books to be filed within six weeks from date. All formalities are dispensed with.
Liberty to mention for early hearing after the paper books are filed.
There shall be an order of stay of operation of this order for ten days from date. But during this ten days the appellant will not be entitled to operate the mines."
The records further reveal that, let alone six weeks, right until 21st June, 2001 [(i.e., a period of 19 (nineteen) years], the appellant - being a registered partnership firm - did not take a single step in the matter or filed its paper books - either cyclostyled or printed - in terms of the specific directions given by the Court as contained in the order dated 12th May, 1982. Finally, on 21st June, 2001, the Appeal Court passed the following order:
"No one appears in support of the appeal when the same is called on for hearing although learned Counsel for the respondent is present.
Accordingly the appeal stands dismissed for default. Interim order, if any, stands vacated.
No order as to costs."
Now, after a further gap of more than 15 (fifteen) years, the instant application seeking recall of the aforesaid order dated 21st June, 2001, appears to have been filed in the Registry on 4th August, 2016. In the instant application seeking recall of the order dated 21st June, 2001, a prayer for condonation of delay in filing of the same has also been made on the basis of several statements, some of which are quoted hereinbelow:
"6. Your petitioner states that for the purposes of the said appeal, your petitioner consulted and engaged late Shri Balai Roy, Senior Advocate to represent them in the proceedings and as advised by him, a junior Advocate in his chambers, namely, Mr. Sobhan Lal Hazra, Advocate was engaged to act as the junior Advocate for the purposes of the said proceedings. Accordingly, a Vokalatnama was given to and in favour of Mr. Sobhan Lal Hazra and such Vokalatnama was filed by him on behalf of the petitioner in Criminal Case No.2348 (W) of 1973 as well as subsequently in FMAT No.1091 of 1982 being the appeal above named.
7. Your petitioner states that having engaged the learned Advocates to represent the petitioner in the manner aforesaid particularly for the purpose of FMAT No.1091 of 1982 your petitioner reasonably believed that all necessary steps as required would thereafter be taken as and when necessary for the preservation and protection of its rights and interests in relation to the said proceedings. It will be apparent from the records of this case hereinbefore summarized that your petitioner at all material times was (and still is) seriously interested to pursue proceedings in connection with the said mining lands and obtain the necessary renewal which it had been seeking for years together as aforesaid.
8. Your petitioner bonafide and honestly believed that their rights and interests would be safely and securely protected by the learned Advocates whom they are engaged for the purpose of their representative. At all material times, your petitioner was and still is solely interested to pursue the above appeal and to secure its rights in the appeal by adjudication by this Hon'ble Court.
9. However, as it now appears the appeal appeared in the Division Bench of this Hon'ble Court on 21st June, 2001 when it was dismissed for default. You petitioner had no prior intimation of any kind from any one whosoever regarding the appearance of the matter in the peremptory list. Your petitioner is now given to understand that no one representing your petitioner appeared before the Hon'ble Division Bench on the said occasion when the appeal was called on for hearing. Your petitioner is further given to understand that only one of the respondents was casually represented before this Hon'ble Court on the date in question.
10. By reason of dismissal of the appeal, the valuable rights of the petitioner were seriously jeopardized and the order if sustained will likely be fatal to the interests of the petitioner. Your petitioner has paramount rights and interests in respect of the mining rights over the concerned lands to the exclusion of all others in the circumstances aforementioned.
11. When the petitioner had filed the appeal on April 27, 1982 it had a subsisting lease and the right and the same was also recognized as would be evident from the conduct from the parties as the petitioner was allowed to continue with the mining operations even after expiry of the lease period by virtue of the orders passed by this Hon'ble Court in C.R. No.3608 (W) of 1973 and C.R. No.2348 (W) of 1979.
12. It is humbly submitted that the State of Orissa had illegally and forcibly taken possession of the leased property on May 28, 1982 during the pendency of the above appeal by using its overwhelming powers. Your petitioner states that it indubitably has the valuable right of first renewal as lessee. Had the vested statutory right of first renewal not been wrongfully dealt with the petitioner would have been in a better position to apply for later and subsequent renewals during the following periods of. However, ignoring the right of renewal, the Central Government malafide took a plea that the area ought to be reserved for exploitation by some public sector enterprise. However, there was no such existing policy when the petitioner had applied for renewal. In fact no such policy has been disclosed till date at all.
13. The petitioner has substantial grounds to agitate its general grievances to challenge the impugned action of the Central Government and the State of Orissa who arbitrarily has claimed to have adopted its pretended policy for reservation of leased premises for exploitation by public sector enterprise thereby, inter alia is acting in violation of the mandatory provisions of Section 8(2) and 8(3) of the Mines & Minerals (Development and Regulation) Act, 1957.
14. Your petitioner has not committed any violation of the Mines & Minerals (Development and Regulation) Act, 1957 and the Mineral Concession Rules, 1960 and indubitably stands on a better footing than any other prospective applicant or applicants. Your petitioner's credentials in the trade are impeccable and unimpeachable.
15. Your petitioner states that although the State of Orissa has collusively grabbed possession of the leased property on 28th May, 1982 on the pretext that the said land ought to be developed by some public enterprise in reality and in fact no steps whatsoever were lawfully taken thereafter respecting any such grant. On the basis of such pretended policy in actual point of fact, the mentioned lands have been virtually lying fallow, unexploited and undeveloped; or else, there has been naked theft of the minerals in some portions of the said lands by persons or entities unknown, who have forcibly entered into and upon the same and recklessly removed the overburden and stolen the minerals immediately thereunder to make illegal gains for themselves.
16. Your petitioner by diligent enquiries has recently ascertained that the lands in fact though never leased to the Manganese Ore (India) Limited, the respondent No.6 above named, and were tacitly and without following due process surreptitiously permitted by the State Government in part to be mined by an entity known as Orissa Mining Corporation on supposedly agency basis from 1985 till the year 2000. There was no legal sanction attached to the exploitation of such lands by the Orissa Mining Corporation which was in actual point of fact a complete outsider.
19. Your petitioner states that at the point of time when the appeal was filed the domestic administration of the petitioner company was principally in the hands of one Md. Khalilur Rahman, a partner of the petitioner firm. The said partner was then in actual point of fact unfortunately suffering from serious terminal disease and ultimately (around the time that the appeal was dismissed), the said partner expired on 14th January, 2002.
20. Your petitioner states that there was active turmoil in the domestic forum of the petitioner firm on the death of Md. Khalilur Rahman because he was the only person who was fully conversant with all the litigations pertaining to mining matters and since he enjoyed the confidence of the other partners, he had been independently looking after such mining matters and all associated litigations right up to the end of his life.
21. In those circumstances, the position was that following the death of the said partner, there was no person in place in the petitioner firm who was fully informed about the circumstances of the above appeal or of ministerial and administrative matters concerning therewith. In fact, so far as the petitioner has been able to ascertain at present the said partner had a personal rapport with the said Shri Balai Roy, Sr. Advocate and he had principally entrusted the said litigation in the hands of the said eminent counsel for the preservation of the petitioner's rights and interests.
22. Your petitioner states that consequent upon the death of the said partner, there was obviously a change in the constitution of the firm. Various partners came into the control of the reconstituted firm who were not aware of the above litigation pending in this Hon'ble Court since the said deceased partner was the only person who had been administering the same on behalf of the firm as aforesaid. Hereto annexed and marked "F" is a schedule which will evidence the changes that took place in the constitution of the petitioner's firm following the death of Md. Khalilur Rahman; and further more the said schedule will evidence as is the fact that after his death principally Mrs. Famida Serajuddin began to look after the affairs of the petitioner firm on and from 2004, which she did until 2007 when her control was also terminated due to her death. Subsequently following her death the Constitution of the firm was again allied and the firm's new incumbents as particulars presently looking after its affairs are Seraj Yusha and Meraj Yusha.
23. Your petitioner states that matters stood thus until March, 2015. Meanwhile, however, in or around March, 2015, the Mines and Minerals (Development and Regulation) Amendment Act, 2015 came into force with effect from 12th January, 2015. A copy of the said Gazette Notification is hereto annexed and marked "G".
25. In course of such investigations in the domestic forum, some meagre records of the litigation concerning the particular lands in question which are the subject matter of the above appeal came to the notice of the said present partners.
26. Immediately following the detection of the pending litigation [that is to say the above appeal], which the present partner then believed to be still on the records in the files of this Hon'ble Court, your petitioner sought the help of M/s. Khaitan & Company, Solicitors & Advocates of 1B, Old Post Office Street, Kolkata - 700001 and requested them to make searches on their behalf to comprehensively find out the present position of the above appeal. It is pertinent to point out that after the death of Md. Khalilur Rahman, no kind of correspondence was received from any Advocates of the petitioner company at any point of time at all. It is only after Gazette notification was published in March, 2015 that the Mines & Minerals (Development and Regulation) Act, 1957 has been amended that a meeting was held by the petitioner firm with its present Advocates to discuss the implication of the amendments in relation to the current mining leases held by the petitioner's firm and also the effect of the amendments of 1957 Act on the pending litigations. In course of such meeting and discussion which was held the petitioner was advised to take appropriate measures for extending the validity of the mining lease operated by the petitioner's firm keeping in mind the last renewal vis-à-vis the cut off date as per the amendment which had come into force after publication of Gazette Notification on March 27, 2015. In course of such discussion, the petitioner had appointed an advocate firm to make thorough research and to advice on the steps to be taken by the petitioner for operating the mining lease held by the petitioner firm. In course of this exercise, records were searched to locate the SGBK mines papers but the same could not be traced till the month of April, 2016.
27. Subsequent to April, 2016, when M/s. Khaitan & Company started making enquiries, it first came to learn that none of the records of the above appeal were at all traceable and it was only by making severe efforts that a few of the records of the above appeal could be traced. M/s. Khaitan & Company on behalf of the petitioner discovered the name of Mr. Sobhan Lal Hazra, Advocate to be appearing as the Advocate in whose favour the Vakalatnama had been given in the above appeal.
30. Your petitioner has been further advised by Mr. Sobhan Lal Hazra that in the year 2000, he became Public Prosecutor and in the following years he was not doing any civil matters thereafter and had no occasion to look after the above appeal at all which in the meanwhile had already been dismissed by the Hon'ble Division Bench as aforementioned.
31. Your petitioner were [sic: read, was] further advised that Mr. Sobhan Lal Hazra has now been designated as a Senior Advocate by this Hon'ble Court and accordingly, he has expressed his inability to sign any "No Objection" in the matter at all.
32. Your petitioner submits that from the narrative of facts hereinbefore stated, it will be evident as if the fact that the petitioner was not represented before this Hon'ble Court on 21st June, 2001 when the appeal was called on for hearing for completely fortuitous reasons entirely beyond in control of the petitioner. The petitioner had properly engaged lawyers to look after the appeal on its behalf.
33. Your petitioner states that its absence at the time when the appeal was called on for hearing was not as a result of any wrong doing on the part of the petitioner or any of its partners. There was no question of wilful default or recklessness or negligence on the part of the petitioner company in this case at all. Your petitioner could only have reasonably believed that your petitioner had given all necessary instructions to both Shri Balai Roy as well as Shri Sobhan Lal Hara for the filing of the above appeal and nothing further remained to be done by the petitioner itself in the matter of hearing or prosecution of the appeal. The technical formalities that were needed to be completed after the filing of the appeal were well known to the learned Advocates who could have taken care of the matters themselves and no kind of instructions were necessary from the petitioner." The only reason why we have taken pains to quote the above statements is to highlight the manner in which the applicant, being a registered partnership firm - conducting litigation before the Division Bench since the year 1982 and even prior thereto, by filing the writ petition in the year 1979 before the First Court - has tried to explain away a period of inordinate delay notwithstanding the fact that no initiative was ever taken by it in order to even comply with the directions given by the Appeal Court on 12th May, 1982, for filing of paper books within six weeks.
It appears that after the instant recalling application was filed, a counter affidavit to the application - on the preliminary point of maintainability - has been filed on behalf of the respondent no.2, being the State of Orissa (now, Odisha), which is represented before us through its learned Advocate General. The preliminary objections with regard to the point of maintainability of the application, as sought to be raised, are as follows:
"5. That, this Hon'ble Court lacks territorial jurisdiction to hear FMAT No.1091/1982 as well as C.A.N. No.7975/2016. Hence, on this ground alone, the accompanying C.A.N. is liable to be dismissed in limine.
6. That, it is submitted that no separate application U/S. 5 of the Limitation Act has been filed by the Petitioner to condone the delay in filing the CAN in the year 2016 for recalling the Order dtd. 21.06.2001. Similarly, no sufficient cause has been assigned in the CAN, to condone the delay in filing the accompanying C.A.N. in the year 2016.
7. That, the period of limitation as provided under the Limitation Act, 1963 for filing restoration application is thirty days from the date of dismissal for default as is provided under Article 122 of the Schedule to the Limitation Act. In the instant case, FMAT No.1091 of 1982 was dismissed for default by this Hon'ble Court vide Order dtd. 21.06.2001 whereas the accompanying application for restoration of the matter has been filed only in the year 2016 which is hopelessly barred by time. Hence, the accompanying application is liable to be dismissed at the threshold being barred by the law of limitation. The Hon'ble Supreme Court in a catena of decisions laid down the law that in a case of inordinate delay, doctrine of prejudice is attracted. The Courts should be strict in condoning the delay.
8. That, in case of inordinate delay. In the instant case, the application for restoration of FMAT No.1091/1982 has been filed after lapse of 15 years whereas the limitation for filing the restoration application is only thirty days. Restoration is not a matter of right. During this period, the right of mining in favour of M/s. Odisha Mining Corporation Ltd. (for short herein after "M/s. OMC Ltd.") as recommended by the Government of Odisha vide letter No.15515, dtd. 26.12.1991 has been duly approved by the Ministry of Mines, Government of India under Section 5(1) of MMDR Act, 1957 vide letter dt.13.12.1993. As such, the operation of the mines was entrusted with M/s OMC Ltd. since 1982 and the right of mining in favour of OMC Ltd. has been upheld in a series of litigations in the Hon'ble High Court of Orissa. Hence a valuable right has accrued in favour of M/s. OMC Ltd. which is not a party before this Hon'ble Court."
Apart from the preliminary objections, the factual backdrop has also been stated in details by the State of Orissa in its affidavit, which, although may be of some relevance, is not required to be reproduced, only to avoid prolixity. However, we refer to one of such factual detail, which has been stated in paragraph 14 of the affidavit. In the said paragraph, the State of Orissa has specifically stated that a valuable right has accrued in favour of M/s. Odisha Mining Corporation Limited and if the prayer of the appellant/petitioner is entertained at this belated stage, M/s. Odisha Mining Corporation Limited will be severely prejudiced.
Several judgments have been referred to and relied upon by the learned Advocate General of the State of Orissa, in order to buttress his submission that in the facts of the instant case, the application seeking condonation of delay of more than 15 years on the ground of lack of knowledge or failure of justice ought not to be allowed. The judgments of the Supreme Court referred to and relied upon by him are as follows:
(i) Maniben Devraj Shah vs. Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157;
(ii) Poonam & Ors. vs. Harish Kumar & Anr., (2012) 12 SCC 527;
(iii) B. Madhuri Goud vs. B. Damodar Reddy, (2012) 12 SCC 693;
(iv) Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649.
A question which arises for consideration in the facts of the instant case is whether the applicant - M/s. Serajuddin & Co., being a registered partnership firm - can be allowed benefit of section 5 of the Limitation Act on the basis of the cause shown in the instant application in the backdrop of the principles of law laid down by the Supreme Court in the judgments referred above.
In order to find an answer, we look into some of the averments made by the applicant, as quoted above, wherefrom it appears that in essence, the applicant has attempted to shift the entire blame of poor conduct of the litigation to three persons - one being the erstwhile Managing Partner of the partnership firm who died on 14th January, 2002, the second being an advocate who was entrusted by the partnership firm to file the appeal in the year 1982, who much later became a Public Prosecutor in the year 2000 and thereafter became a designated Senior Advocate and thirdly, upon an eminent senior counsel of this Court who, unfortunately, is also no more. We thus find that out of the three persons blamed for poor conduct of the litigation leading to dismissal of the appeal, two are already dead and the third is now a designated Senior Advocate of this Court.
At this stage, what makes interesting reading is paragraph 9 of the application, which has been reproduced hereinabove. The applicant - being a registered partnership firm - has clearly stated therein that it had no prior intimation of any kind from any one whosoever regarding appearance of the matter in the peremptory list on 21st June, 2001. We may observe at this stage that when any matter appears in the peremptory list, the effect of publication of such list - by itself - means that the cause-list is brought within the domain of public knowledge. A litigant is supposed to prosecute his/her litigation with right earnest and due diligence. Failure to do so, while citing ignorance or poor conduct of litigation as a ground, therefore, cannot be an excuse in order to cover up a period of inordinate delay or palpable laches in conducting a litigation.
The records, by itself, demonstrate certain startling facts. The appellant, being a registered partnership firm, was alive to the proceedings before the Appeal Court and, in fact, participated in the proceedings with right earnest and due diligence until 12th May, 1982. It is only when the Appeal Court refused the prayer for stay and proceeded to dismiss the application for injunction and directed filing of paper books, the appellant (being the applicant herein) lost interest in the matter. This resulted in the appellant being not represented on 21st June, 2001, when the appeal stood dismissed for default, 19 (nineteen) years from the date when direction for filing of paper books was given by the Appeal Court. No steps were taken by the appellant for 19 (nineteen) years for filing of paper books or for having the appeal heard. Now, after a period of more than 15 (fifteen) years therefrom, to come forward and file the instant recalling application seeking condonation of delay of over 15 years is nothing but an attempt to take advantage of the liberal interpretation of section 5 of the Limitation Act, particularly in respect of the phrase, "sufficient cause", being construed as such and in fact, tantamounts to abuse of process of Court.
As observed by the Supreme Court in N. Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123 - which has been referred to and relied upon by the Supreme Court in Esha Bhattacharjee's case (supra) - the law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy and is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. Rather, they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
In this context, we also take notice of a judgment of this Court rendered in the case of Shankari Naskar vs. Kolkata Port Trust & Ors. reported in AIR 2016 Calcutta 91, wherein it has been held to the effect that in a modern justice system, a lis in perpetuity is simply unheard of and unacceptable. Closure of a lis, not prosecuted with due diligence or in right earnest by a litigant, therefore, is inevitably unwarranted.
Some of the factors which we have taken into consideration - such as, the explanation for the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay - are those factors which a High Court is required to consider, following the ratio laid down by the Supreme Court in Poonam & Ors. (supra).
As observed earlier, in the instant case what we notice is that it is not a few days delay, but an inordinate period of delay of over 15 years. The pronouncement of the Supreme Court in Vedabai alias Vaijayanta-bai Baburao Patel vs. Shantaram Baburao Patil & Ors. reported in (2001) 9 SCC 106, [which was taken note of by the Supreme Court in Esha Bhattacharjee's case (supra)] has also been referred to and relied upon by this Court in the case of Union of India vs. Manju Guha & Ors. reported in AIR 2015 Calcutta 133. In Vedabai (supra), the Supreme Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. In this context, we take notice that in the counter-affidavit filed on behalf of the State of Orissa, a specific averment has been made in paragraph 14 that a valuable right has accrued in favour of M/s. Odisha Mining Corporation Limited in the meanwhile and if the prayer of the petitioner is entertained at this belated state, M/s. Odisha Mining Corporation Limited will be severely prejudiced.
In Maniben Devraj Shah (supra), the Supreme Court took note of the ratio of its earlier judgment rendered in Vedabai (supra) and proceeded to make the following observations in paragraphs 23 and 24 of its judgment [which has also been quoted by the Supreme Court in Esha Bhattacharjee's case (supra)]:
"23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
Maniben Devraj Shah (supra) - which has referred to and relied upon the Supreme Court's earlier judgment rendered in Vedabai (supra) - has also been quoted by the Supreme Court in B. Madhuri Goud (supra). Paragraph 5 of the judgment of the Supreme Court in B. Madhuri Goud (supra) is of relevance and is required to be reproduced hereinbelow:
"5. We have heard the learned counsel for the parties. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation."
The facts of the instant case, as discussed hereinbefore, do not bring forth even an iota of justifiable reason as to why the Court should use its discretion on the basis of cause shown by the litigant - in the instant case, a registered partnership firm - in order to come to a finding that "sufficient cause" has been palpably shown for the purpose of condoning the delay of over 15 years in filing of the application seeking recall of the order dated 21st June, 2001. As observed earlier, we do not even hesitate to add that the instant application practically borders on abuse of process of Court by a litigant, being a registered partnership firm, which chose to file it after 15 (fifteen) years simply because of the existence of section 5 of the Limitation Act, 1963, in the statute book and its liberal interpretation, particularly in respect of the phrase, "sufficient cause", being construed as such.
Before parting with the matter, we quote the following lines from the judgment of the Supreme Court render in Esha Bhattacharjee (supra):
"31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice.
32. The plea of lack of knowledge in the present case really lacks bona fides. ..."
No expression could be more apt while considering the facts of the instant case.
For reasons stated above, the application for recalling of the order dated 21st June, 2001, upon condonation of delay of more than 15 (fifteen) years, is liable to be dismissed with exemplary costs and is accordingly dismissed with costs assessed at 300 G.Ms. to be deposited with the State Legal Services Authority, West Bengal, for being earmarked for its utilisation by the Mediation and Conciliation Committee of the High Court.
Let this matter appear a fortnight hence only for the purpose of ensuring compliance of the above direction for depositing costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) pg .