Gauhati High Court
Page No.# 1/9 vs Baliram Singh And Anr on 1 May, 2025
Page No.# 1/9
GAHC010154492023
2025:GAU-AS:5359
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2819/2023
NUMALIGARH REFINERY LTD. AND ANR.
A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT,
1956, REPRESENTED BY ITS MANAGING DIRECTOR 122, GS ROAD,
CHRISTIAN BASTI, GUWAWHATI 781005
2: THE REGIONAL MANAGER (MARKETING)
122 A
GS ROAD
CHRISTIAN BASTI
GUWAHATI 78100
VERSUS
BALIRAM SINGH AND ANR.
S/O RAM BADAN SINGH,
PROPRIETOR NRL ENERGY STATION, SAWKUCHI LOKHRA ROAD,
KALAPAHAR, GUWAHATI 781034, DIST KAMRUP M ASSAM
2:TERRITORY MANAGER
GUWAHATI RETAIL TERRITORY
BHARAT PETROLEUM CORPORATION LIMITED
A GOVT. OF INDIA ENTERPRISES
1ST FLOOR NEXIA PARK
GMC HOSTEL ROAD
CHRISTIAN BASTI
GUWAHATI 781005
HAVING ITS REGISTERED OFFICE AT BHARAT BHAWAN
4 AND 6 CURRIMBHOY ROAD
BALLARD ESTATE MUMBAI 40000
Advocate for the Petitioner : MR. S S ROY, MS. S KAKATI,MS. M. KONYAK. W
Page No.# 2/9
Advocate for the Respondent : MR G N SAHEWALLA (R-1), B K SINGHA (R-1),MR. N SHARMA
(R-1)
In
RSA Case No. 8276/2023(filing number)
WITH
RSA Case No. 8276/2023(filing number)
WITH
RSA Case No. 8277/2023(filing number)
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
01.05.2025
1. Heard Mr. S.S. Roy, the learned counsel for the applicants. Also heard Mr. G.N. Sahewalla, the learned Senior Counsel, assisted by Mr. N. Sharma, the learned counsel appearing for the respondent No. 1.
2. This application under Section 5 of the Limitation Act, 1963 has been filed by the applicants, namely, 1. Numaligarh Refinery Limited and
2. The Regional Manager (Marketing of the said company), praying for condoning the delay of 30 days in preferring the connected Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 against the Judgment dated 11.01.2023 and Decree dated 21.02.2023, passed by the learned Civil Judge No. 1, Kamrup(M) in the Title Appeal No. 31/2019.
3. Mr. S.S. Roy, the learned counsel for the applicants has Page No.# 3/9 submitted that the present respondents had filed a Title Suit No. 328/2011 against the present applicants seeking relief of permanent injunction against them and by Judgment and Decree dated 22.07.2019, the Court of the learned Munsiff No. 1, Kamrup(M) had dismissed the suit with contest.
4. On this the plaintiff/respondents had preferred an appeal against the said Judgment. The said appeal was registered as Title Appeal No. 31/2019. However, by the impugned Judgment dated 11.01.2023, the Judgment of the Trial Court was set aside and a decree for declaration and permanent injunction was passed by the First Appellate Court.
5. The learned counsel for the applicants has submitted that though the Judgment of the First Appellate Court was passed on 11.01.2023, however, the Decree was prepared on 21.02.2023 and thereafter, the applicants applied for certified copy and the said certified copy was received on 02.06.2023 and the connected appeal has been filed on 17.07.2023.
6. The learned counsel for the applicants submits that the time taken for obtaining the certified copy has to be excluded from the period of limitation and after such exclusion the delay of 30 days occurred in preferring the connected appeal.
7. The learned counsel for the applicants has submitted that the delay in preferring the connected appeal has been caused as before filing the appeal, the approval of higher authorities of the applicants company has to be taken and in obtaining such approval, some time was consumed beyond the period of limitation. He further submits that after getting Page No.# 4/9 approval of the higher authorities, the appeal was immediately preferred without any further delay and hence, there was no intentional dilatory tactics adopted by the applicants and no malafide was there in preferring the connected appeal belatedly.
8. He further submits that as the delay in preferring the connected appeal has been properly explained in paragraph No. 2 of the application for condonation of delay, same may be treated as sufficient cause which prevented the applicants in preferring the connected Regular Second Appeal within the period of limitation and therefore, he prays that the said delay of 30 days may be condoned.
9. On the other hand, Mr. G.N. Sahewalla, the learned Senior Counsel, for the respondents has submitted that in the instant case, the total delay is not of 30 days, but of 87 days, which has not been properly explained. He submits that the Judgment in this case was passed on 11.01.2023 and therefore, the period of limitation has to be computed from that date and not from the date on which the Decree was prepared, i.e. on 21.02.2023. He further submits that if the limitation period is computed from 11.01.2023, the 90 days expires on 11.04.2023 and if we add the time taken for obtaining the certified copy, i.e. 10(ten) days, the appeal should have been filed on 21.04.2023.
10. However, in the instant case, the connected appeal has been filed on 17.07.2023 and thus, the delay has not been explained properly by the applicants. He also submits that in the instant case, even the application for obtaining the certified copy was filed by the applicants after the expiry of limitation period of 90 days and therefore, they would not get the Page No.# 5/9 benefit of exclusion of the time before filing of the application for certified copy, unless same is explained properly which the applicants has not done in this case.
11. The learned counsel for the applicants has submitted that the delay of 87 days in filing the connected appeal has not been properly and sufficiently explained and therefore, the prayer for condoning such delay in preferring the connected appeal may be rejected. He has relied upon the following rulings in support of his submissions:-
i. " V. Nagarajan Vs. SKS Ispat and Power Ltd. & Ors." reported in "2022 2 SCC 244;"
ii. "State of Tripura Vs. Pradip Ghosh & Ors." reported in "2001 (3) GLT 187;" iii. "State of Assam Vs. Gobinda
Chandra Paul "reported in "(1991) 1 GauLR339."
12. I have considered the submissions made by the learned counsel for both the sides and have perused the materials available on record. In the instant case, the impugned Judgment against the connected Regular Second Appeal has been filed was passed on 11.01.2023 and the Decree was prepared on 21.02.2023. It is a settled law that in computing the period of limitation, the date of the Judgment is to be taken into consideration and the time taken by the Court for preparation of Decree cannot be excluded from such period while computing the period of limitation. In this regard, the observations of the Apex Court in the case of Page No.# 6/9 V. Nagarajan Vs. SKS Ispat and Power Ltd. & Ors. (supra) is relevant and same is quoted herein below:-
"30. Section 12 of the Limitation Act provides guidance on reckoning the period of limitation and excludes the time taken by a party for obtaining a certified copy of the order it seeks to appeal. However, the Explanation clarifies that the time taken by the court in preparing the order before an application for a copy is filed by the aggrieved party, is not excluded from the computation of limitation:
"12. Exclusion of time in legal proceedings.--(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the Page No.# 7/9 judgment shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation.--In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."
(emphasis supplied)
31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a copy is made. .................."
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13. In the instant case as the Judgment was delivered on 11.01.2023, the period of limitation of 90 days in preferring the connected appeal expires on 11.04.2023. It also appears that the applicants had applied for the certified copy of the Judgment and Decree on 22.05.2023, i.e. beyond the period of limitation and the said certified copy was delivered to the applicants on 02.06.2023. Therefore, if we take the time taken for obtaining the certified copy to be 10(ten) days, said period would be added to the 90 days limitation period and therefore, the appeal should have been filed on 21.04.2023.
14. However, in the instant case, the connected appeal has been filed on 17.07.2023, which shows that there has been a delay of 87 days in preferring the connected appeal.
15. If we peruse the application filed by the applicants for condoning the delay, it appears that the applicants have explained the delay of only 30 days i.e., for obtaining necessary approval for filing the connected appeal from the higher authorities. Even if we exclude those 30 days still 57 days delay remained unexplained in the application filed by the present applicants.
16. Though in the event a plausible explanation is given an application for condonation of delay has to be considered liberally. However, in the instant case, not to speak of sufficient cause, no explanation has been given for the delay of 57 days. As no explanation for the aforesaid period of 57 days is there in the application for condoning the delay, hence, same remained unexplained and said delay may not be condoned.
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17. The applicants seem to be very complacent. The prayer for condoning the delay may not be granted on mere asking for getting such relief. The delay has been sufficiently explained as provided in Section 5 of the Limitation Act, 1963. However, in the instant case, the applicants has miserably failed to do so. Therefore, this Court is left with no other option, but to dismiss the instant interlocutory application and reject the prayer for condoning the delay.
18. This interlocutory application is accordingly dismissed.
19. The connected Regular Second Appeal is therefore, barred by limitation.
JUDGE Comparing Assistant