Bombay High Court
The New India Assurance Co. Ltd. And Ors. vs Hanil Era Textiles Ltd. on 27 March, 2003
Equivalent citations: 2003(4)BOMCR41, 2003 A I H C 2506, (2003) 3 ALLMR 678 (BOM), (2003) 4 RECCIVR 67, (2004) 2 ICC 127, (2003) 4 BOM CR 41
Author: R.G. Deshpande
Bench: R.G. Deshpande
ORDER R.G. Deshpande, J.
1. Learned Advocate Shri M.M. Vashi appears for respondent No. 1. He waives service. In view of this, objection as regards bhatta is waived.
2. These two Appeals against Orders i.e. A.O. No. 160/2003 and A.O. No. 162/2003 are being disposed of by this common order, since facts are mostly identical so far as regards C.A. No. 196 of 2003 in A.O. No. 160 of 2003 and C.A. No. 195 of 2003 in A.O. No. 162 of 2003 are concerned, for the purposes of decision on these applications, the facts as are stated in C.A. No. 196 of 2003 are only being referred to in this Order so as to avoid the repetation.
3. Respondent No. 1 Hanil Era Textiles Ltd., initiated Special Civil Suit No. 24 of 2002 in the Court of Civil Judge, Senior Division, Panvel, for declaration and permanent injunction against the appellants/original defendants. In the above said Civil Suit an application for ex-parte and ad-interim injunction presumably under Order 39 Rule 1 & 2 was moved which was marked as Exhibit-5. The learned Judge of the Court below who dealt with the application Exhibit-5 vide Order dated 3.5.2002 granted interim relief whereby he issued ad-interim injunction in favour of the plaintiff and against the defendants present appellants restraining the appellants, their servants, agents or any one on their behalf from deducting or recovering or withholding any amount towards additional premium of insurance policy from any amount or claim of the plaintiff i.e. present respondent pending with the appellants till the decision of the Suit. By the same order the learned Judge further directed the present appellants by way of an ad-interim injunction to effect the excess clause in the policy of the first 5 days only as stated in the original policy issued and further restrained the defendants from giving effect to the amendment of 15 days excess, as was introduced in the policy by the appellants/original defendants.
4. It is this order, which is the subject matter of challenge in this Appeal as also identical order in the connected Appeal.
5. Since there is a considerable delay in filing the Appeal naturally the appellants moved the present applications i.e. C.A. No. 196 of 2003 in A.O. No. 160/2003 and C.A. No. 197 of 2003 in A.O. No. 162 of 2003. Precisely the delay is of 242 days in filing the Appeals.
6. Since these applications are required to be first decided, this Court restrains itself from making any observations as regards merits of the case except if required for considering the reasons for the delay.
7. Admitted position is that there is a delay of 242 days which naturally prompted the appellants to move the present application. Whether the appellants have given sufficient, substantial, justifiable, convincing and genuine reasons for condonation of delay and whether on the basis of the reasons as are given in the application whether the delay deserves to be condoned or not will have to be decided on the basis of relevant facts in that respect. This Court is aware of the fact that the courts are not supposed to get influenced by merits of the case at the time of deciding the application for condonation of delay, except in such an exceptional cases where in if the delay is not condoned, it may result in to a blatant injustice.
8. The order under challenge passed by the learned Civil Judge Senior Division, Panvel, is dated 3.5.2002. The appellants applied for the certified copy of that order on 10.5.2002 and factually received certified copy on 14.5.2002. Definitely the appellants were lucky to get the copy so fast.
9. The above said order, after having received the certified copy was challenged by the appellants in First Appeal in the court of District Judge, Alibagh, filed on 14.5.2002. However, the registry in the court of the District Judge, Alibagh, appeared to have returned the Appeal as it was not maintainable before that court. In short, the Appeal factually appeared to have not been filed at all in the court of District Judge, Alibagh and there is no dispute on this point between the parties. The appellants filed First Appeal before this Court on 15.6.2002. The registry in the High Court did raise an objection as regards non maintainability of the First Appeal itself, however, appeared to have not been taken due care of by the appellants and the First Appeal appeared to have been kept pending till it was listed before the court on 31.8.2002. The matter again appeared on 25.10.2002 before the court, however, since the learned counsel for the appellants did not appear on that day, the case was adjourned to 31.1.2003. On 31.1.2003 a statement was made before the Court by the learned Counsel for the appellants that the First Appeal was not maintainable in the matter and the learned Counsel therefore, sought permission to withdraw the said First Appeal with liberty to file other appropriate proceedings challenging the impugned order. My brother Judge Justice D.G. Karnik who dealt with the matter on that day, by his above said order dated 31.1.2003 allowed the Appeal to be withdrawn with liberty as was sought for i.e. it must be for exhausting other appropriate remedies.
10. After withdrawal of the First Appeal from the High Court Appeal against Order came to be filed at the instance of the appellants on 10.2.2003 alongwith Appeal memo, naturally application for condonation of delay was filed in both the matters which are being disposed of by this order.
11. Keeping the dates in mind, worth it is to note that the limitation for filing of First Appeal in the High Court is 30 days from the date of passing of the order plus the copying days as are to be calculated in accordance with law. If the earthematical calculation is made on the basis of these dates, then it is clear that the First Appeal itself was definitely barred by time. Objections as regards maintainability of the First Appeal itself as raised by the office, appeared to have not been appropriately taken note of by the appellants and surprisingly, allowed the matter pending without taking any steps in setting it right by appropriate steps. It was for the first time on 31.1.2003 that the First Appeal was withdrawn with liberty which clearly means from 15.6.2002 i.e. the date of filing of the First Appeal till its withdrawal for the first time on 31.1.2003 i.e. virtually about 5 & 1/2 months no diligence what-so-ever appeared to have been shown by the appellants in getting the matters set right by either converting the First Appeal in to an Appeal from Order or even by withdrawing the same and filing Appeal from Order within that time. Even after withdrawal of First Appeal on the last day of month of January, 2003 surprisingly, for 10 days again the appellants did not move the Court by filing Appeal from Order which definitely added to the further delay in the matter.
12. The reasons which are attempted to be put forward for the delay apart from approaching initially to the wrong court on other reason appeared to have been given what-so-ever much less pending Civil Application. However, at the same time, fallacy on the part of the appellants in the matter appeared to have been openly accepted by the appellants as is clear from the contents of paragraph-4 of this Civil Application.
13. The question is could this reason be said to be sufficient for condoning the delay in filing the present appeal. It is clear from the facts as narrated in the application that the appellants were not ignorant about the period of limitation. It is further clear that the appellants atleast after filing the First Appeal in the High Court on 15.6.2002 were aware that the First Appeal was not maintainable as it was not the remedy open to challenge the order in the High Court but the remedy was to challenge the same before the High Court itself by filing Appeal from Order under Order 43 of the Civil Procedure Code. However, lack of diligence on the part of the appellants in the matter till 31.1.2002, in the opinion of this court suggests a visible laxity on the part of the appellant institution and its attitude ranges from apathy to indifference disentitling itself to any liniency in the matter of condonation of delay.
14. It is pertinent to note that the appellants before this Court cannot be said to be un-aware of the procedures and limitation in the legal proceedings. The appellants No. 1 is New India Assurance Company Ltd., and appellants Nos. 2 & 3 happened to be the officers high up in the echelon of the appellant No. 1 company. It is also clear that the institutions like the appellant company has its own legal cell having law officers and advisors in the legal matters. It is definitely therefore, expected from such type of litigant to be more particular in respect of the legal matters of the company much less when the present type of disputes are there to be handled by the company. This court therefore, find it difficult to give even slightest concession in the present matter wherein because of the impugned order certain advantages are definitely accrued to the respondent to which respondent is entitled to. This Court therefore, finds it difficult to accept the reasons given in the application to be sufficient reasons or genuine or convincing reasons for condoning the delay which is also in-ordinate delay of 242 days.
15. In the opinion of this Court the point as regards limitation do definitely gather importance particularly when if the party appealing looses the limitation, the other side in the litigation do definitely derive certain advantages because of the in-action on the part of the party appealing. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide. This is the view as it expressed in the case of Nagendra Nath v. Suresh . Identical is the view also expressed by the Privy Council in the case of General Accident Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim . Their Lordships and the Privy Council while dealing with the aspect of limitation specifically observation that "Limitation Act ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party. The Judge can not, on equitable grounds, enlarge the time allowed by the law, postpone its operation,or introduce exceptions not recognized by it:" Keeping in view these observations and the facts of the present case and the status of the present appellants, this court is of the firm view that the appellants would not deserve condonation even on the principles of equity. This court would rest its conclusion on the decision of the Supreme Court in the case of P.K. Ramchandran v. State of Kerala and Anr. reported in Judgment Today 1997 (8) S.C.
189. Their Lordships of the Supreme Court while dealing with that matter answered that "Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds." In the matter which was in hand of Supreme court, the High Court while exercising the discretion had condoned the delay, that too of about 565 days inspite of there being no reasonable and satisfactory explanation given by the appellant in that matter. In my opinion this Court has hardly any dispute in the present matter to deviate even in slightest manner the principles laid down in the above said Judgments.
16. In the opinion of this court the present appellants also cannot derive any advantage to Section 14 of the Limitation Act as in the opinion of this Court the appellants have dis-entitled themselves of such a relief when inspite of there being office objections raised as regards maintainability of First Appeal in the High Court for a considerable long time, no steps what-so-ever have taken by the appellants so as to immediately convert the First Appeal into the Appeal from Order or to withdraw the same immediately and file afresh contending that they were under bonafide impression prosecuting the matter before wrong forum. In my opinion therefore, there is hardly any scope in the instant matter to give even slightest concession to the present appellants in the matters of condonation of delay.
17. Learned Senior Advocate Shri Bhattacharya on behalf of the appellants argued that if merits of the matter are seen, and further that if delay is condoned, no prejudice is likely to be caused to the respondents. In fact in the appropriate and deserving cases courts consider merits also to find out whether the matter needs decision on merits and in that case the courts do condone the delay. After hearing learned Senior Counsel Shri Bhattacharya at length this court to get satisfied itself about the point which needs decision in the matter found, that since the matter is pending decision before the court below and the interim order which is passed does not appear to be erroneous or without jurisdiction per-se, this court thought it not fit to get influenced by this argument of learned Counsel to further excavate the merits in the matter at this stage.
18. In the circumstances, this court is not satisfied with the reasons as are forwarded for condonation of delay. The application for condonation of delay stands rejected. Naturally, the Appeal automatically stands rejected. In the circumstances, no orders as to costs.